The current dramatic interaction between the Government, Parliament and the courts means that we are witnessing one of those formative moments in the evolution of our constitution of which there have been many over the course of centuries. The attention that is paid to the checks and balances of the US written constitution has tended to overshadow the fact that a much more interesting confusion and separation of powers has been at the heart of the dynamic development of our unwritten constitution.

In the present struggle, the sovereignty of Parliament has been invoked. Monarchical ambitions have been detected in the executive. The spectre of the politicising of the courts has been raised. It may be helpful to re-state as calmly as possible the underlying and enduring structure. You do not have to be Edmund Burke to believe that it is a remarkable achievement of subliminal collective intelligence over the course of fifteen centuries.

The sovereignty of Parliament merely expresses the legal fact that Acts of Parliament override the common-law, and hence are in that sense supreme, subject now to the effect of EU law within UK law. The powers of Parliament are themselves legal powers which the courts respect and assert and protect. The Bill of Rights of 1689 says that ‘the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place outside of parliament’.

There is no particular magic in the term ‘prerogative power’. The few remaining prerogative powers are common-law powers in the sense that they are not conferred by statute, and in the sense that they are powers whose existence and conditions of application are matters to be determined by the courts. They are also common-law powers in the sense that they may be abolished, abridged, supplemented or temporarily superseded by statute.

The whole of our sophisticated system of public law consists in the review by the courts of decisions made by all levels of the executive branch of government in the exercise of legal powers. Of course, the decisions will often have been made on political grounds, but it is the job of the courts to determine the limits of the powers, given that their exercise abridges the legal rights and freedoms of particular citizens, and in some cases the legal rights and freedoms of all citizens.

All of these things are simply manifestations of the principle of the Rule of Law. It took centuries of struggle to establish the Rule of Law as the ultimate principle of our constitution, so that it could become an ultimate principle of liberal democracies across the world.

Philip Allott is Professor Emeritus of International Public Law at Cambridge University.

A central theme of the High Court judgment in Miller v Prime Minister is that there is ‘no legal measure by which the court could form a proper judgment on’ the matter of whether prorogation was excessive to prepare for the Queen’s Speech (at [56]). It was also said to be ‘impossible for the court to assess by any measurable standard how much time is required “to hold the Government to account”’ (at [57]). Is that accurate?

Arguably the proper approach to this question was set out in R (UNISON) v Lord Chancellor. There it was held that an Employment Tribunal fees order was ultra vires, taking into account the effect of fees in deterring claimants from accessing a public system of justice, a fact which itself affected the rule of law. According to Lord Reed, ‘the degree of intrusion [on access to justice] must not be greater than is justified by the objectives which the measure is intended to serve’ (at [88]). This principle was one of common law, but also ‘an analogy’ to the principle of proportionality. International law, in this case the case law of the European Court of Human Rights, was ‘revelant to the development of the common law’ (at [89]).

This suggests that the proper ‘legal measure’ flows from the government’s own objectives. So, in the case of prorogation of Parliament, does the prorogation intrude no more upon a constitutional principle than is justified by the objectives which it is intended to serve? Here it is plain that the relevant constitutional principle is Parliamentary sovereignty, ‘a fundamental principle of the UK constitution’ (R (Miller) v Secretary of State for Exiting the EU, [43]). It also affects the right to ‘take part in the conduct of public affairs, directly or through freely chosen representatives’ found in the International Covenant on Civil and Political Rights 1966 article 25(a).

It follows that the established approach since UNISON is probably to ask:

What is the government’s aim in proroguing Parliament? If that aim is legitimate, then ask…

Is the government’s progrogation appropriate to achieve the aim?

Does the government’s prorogation go further than is necessary to achieve the aim?

Does the government’s prorogation strike a reasonable balance between its interests and society’s as a whole?

At each of these steps there is room for debate. It is first debated whether the government’s aim is in fact to prepare for the Queen’s speech, or whether its true motive is to frustrate the attempt of Parliament to block the government’s option of a ‘no deal’ Brexit. As the Queen in Parliament is ‘the great corporation or body politic of the kingdom’ (William Blackstone, Commentaries on the Laws of England (1765) a useful analogy in another kind of corporate law is found in Howard Smith Ltd v Ampol Petroleum Ltd. This held that company directors issued shares for the improper purpose of blocking a takeover bid, despite their claim that they aimed to finance the completion of tankers (approved in Eclairs Group Ltd v JKX Oil & Gas plc, [23] per Lord Sumption, the ‘leading modern case’). What is the true aim is an evidential question. Cherry v Advocate General, [53]-[58] has held that the true aim of prorogation is to ‘stymie’ Parliamentary scrutiny.

If, however, it is accepted that there is a legitimate aim, the court should then ask whether action taken is appropriate, necessary and reasonable. Here the clinching factor is likely to be ‘necessity’. Despite the High Court’s opinion that there is no ‘legal measure’, it would appear that the measure is precisely the government’s stated aim. It would seem not to be beyond the capacity of the court to determine whether time to prorogue Parliament is excessive or not, taking into account past practice. In this, it is up to the government to show that the ‘degree of intrusion [is] not be greater than is justified by the objectives which the measure is intended to serve’.

This is all the more important because the Bill of Rights 1689 article 1 states that ‘the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall.’ It is an inherent part of logic, including in law, that reasoning ‘from the lesser to the greater’ (a minori ad maius) what is illegal in a minor way, must also be illegal when done in a major way. If a government purports not merely to suspend laws or their execution, but suspends the entire lawmaking body of Parliament, there must be good justifications. In this way, it is not clear why prorogation of Parliament should be considered a matter of ‘politics’ as ostensibly distinct from law.

Ewan McGaughey, Senior Lecturer, School of Law, King’s College, London

Constitutional lawyers often point to key cases as milestones in public law. Recently, the Supreme Court decision in Privacy International joined the ranks of leading public law cases, adding to the cases discussing ouster clauses and the extent to which courts can review decisions of inferior courts and tribunals in Anisminic and Cart. As Privacy International also demonstrated, milestone cases often take on a life of their own. The judges in Anisminic may be surprised at how the case was later interpreted. But this is how the common law works. Anisminic was interpreted in a series of later cases to demonstrate that all legal errors are jurisdictional errors. This then became part of the common law.

CCSU (or the GCHQ case) has long been regarded as a milestone case regarding judicial control over prerogative powers. In R (Miller) v Prime Minister, (Miller 2) the High Court interpreted CCSU as marking a sea change in how we review prerogative powers. Courts no longer look at the source of a power but its subject matter when determining whether it can be subject to judicial review. Post CCSU it was no longer the case that prerogative powers could not be reviewed because their source was the common law as opposed to legislation. Rather, courts look to see if the subject matter of that prerogative power is justiciable. Is it suited to judicial control by the court?

This blog post will make two arguments. First, it will argue that the High Court’s reading of CCSU in Miller does not provide the full story. As such, it fails to provide an accurate account of when prerogative powers are justiciable. Second, it will argue that, given the current constitutional circumstances, there are strong constitutional reasons for the Supreme Court to build on CCSU and recent case law developments which recognise the principle of legality as a constitutional principle and not just a principle of interpretation. As such, it, or a sister principle, can and should also apply to prerogative powers. The seeds of this form of control were already planted in R (Miller) v Secretary of State for Exiting the European Union (Miller 1), which confirmed that the common law restricts the scope of broad prerogative powers in a similar manner to the principle of legality.

Justiciability

To read CCSU as merely exchanging source for subject matter does not tell the full story. There are many nuances to the judicial approach to controls over prerogative powers. First, it fails to distinguish between controls over whether a purported prerogative power exists, and judicial review over the exercise of a prerogative power. As Miller 1 recognises, controls over whether a prerogative power exists are not confined to an historical analysis. The common law and legislation restrict the scope of prerogative powers. In Miller 1, the Case of Proclamations, combined with the Bill of Rights 1688/9 and the Claim of Rights 1689 in Scotland, provided authority that prerogative powers could not be used to change domestic law. The Supreme Court drew on Laker Airways and Fire Brigades Union to conclude that prerogative powers cannot be used to frustrate the will of Parliament as expressed in legislation, either by frustrating specific statutory provisions or by rendering it devoid of purpose. Whilst these look like cases concerned with the exercise of prerogative powers – because we refer to them as restricting the use of these powers – they are better understood as controls over the existence or scope of prerogative powers. The Supreme Court in Miller 1 did not ask whether the prerogative power of withdrawing from a Treaty was justiciable, despite the clear argument that it was a non-justiciable matter of high policy – the merits of Treaty withdrawal are a matter of politics, not law. Rather, the Supreme Court considered the matter differently. It limited the scope of the prerogative power of entering into and withdrawing from Treaties so as not to include a specific power to unilaterally withdraw from a Treaty where to do so would modify domestic law or frustrate legislation.

Second, as the High Court recognises in Miller 2, the law has moved on from CCSU. Lord Roskill’s list of non-justiciable prerogative powers has modified over time, with the court recognising that prerogative powers that previously looked to be too political could be subject to legal controls. Lord Roskill’s judgment is not the only judgment in CCSU. The other judgments provide further justifications for the ability of the courts to review prerogative powers. There is a clear role of the court to review those prerogative powers that harm individual rights. We can see this not just as a concern for protecting human rights, but also a broader concern for legitimacy. Moreover, there are suggestions in CCSU and later cases that prerogative powers are justiciable when there are legal standards by which their use can be assessed – as accepted by Lord Drummond Young in Cherry v The Advocate General (at [102]).

This is not, as the High Court in Miller 2 suggested, to stand justiciability on its head, forgetting that ‘the question of justiciability comes first, both as a matter of logic and of law’. (at [41]). Justiciability can still come first. As Lord Pannick argued, greater caution is exercised over those prerogative powers that are more political. In other words, subject matter can be used as a prima facie indication of justiciability. If a prerogative power is an exercise of high policy, for example, it would suggest either that it can be reviewed on fewer grounds of judicial review, or that the court scrutinises the use of this prerogative in a less stringent manner. Subject matter is still important, even if courts focus on an examination of possible legal grounds of review to determine justiciability. More ‘political’ prerogative powers could, for example, only be unlawful if they breached the rule of law, or failed to follow clear principles of natural justice, rather than being struck down as irrational. Moreover, such ‘political’ prerogative powers might only be unlawful where the use of the prerogative was so absurd that there were no possible rational justification for its exercise.

All of these elements were arguably accepted by the Inner House in Cherry. Lord Carloway concluded that control over the prorogative power of prorogation was justiciable when the prerogative undermines or attempts to undermine a ‘central pillar’ of the constitution – ‘the central pillar of the good governance principle’ (at [50]). Lord Brodie accepted that, whilst it was not for the court to determine the length of prorogation, nevertheless the control of the prerogative was justiciable as the use of the prorogative in this case was ‘so blatantly designed to frustrate the will of Parliament at a critical juncture in the history of the UK’ (at [91]).

Furthermore, as the High Court itself accepts in Miller 2, when it comes to determining justiciability ‘the essential characteristic of a “political” issue is the absence of judicial or legal standards by which to assess the legality of the Executive’s decision or action’ (at [47]). This too appears to merge subject matter and the nature of the challenge when determining justiciability.

Principle of legality

I argued above that Miller 1 concerned the scope of prerogative powers. Whilst the Government enjoyed a broad prerogative power to enter into and withdraw from Treaties, this did not include a specific power to withdraw from the EU Treaties because the consequences of doing so would mean that the prerogative would frustrate legislation and modify domestic law, removing individual rights. When expressed in this manner, the reading down of a broad prerogative power is parallel to the way in which courts use the principle of legality to read down broad statutory provisions to protect fundamental rights. In UNISON, for example, the statutory power granted to the Lord Chancellor to set court fees did not extend to include a power to set fees for employment tribunals that undermined access to justice by making it practically impossible for many who used employment tribunals to afford the fees. If, as CCSU suggests, there is a move from source to subject matter, then it is also possible to argue that a principle similar to the principle of legality applies to prerogative powers. Both are executive powers that should be subject to analogous judicial controls, despite having a different source.

The obvious objection to the above argument is that the principle of legality is a principle of statutory interpretation. Yet, when dealing with most prerogative powers – and particularly the prerogative power of prorogation – there are no statutes to interpret. So how can it apply to prerogative powers? There are two main arguments in response to this objection.

First, the principle of legality is not just a principle of statutory interpretation. It is also a constitutional principle establishing the limits of executive power. As Lord Hoffmann recognises in Simms, its application means that the UK courts, whilst accepting parliamentary sovereignty ‘apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document’ (at [131]. See also the argument of Fordham QC, at [31] of Miller 2). Moreover, later case law recognises sister principles to the principle of legality, applied to the interpretation of Henry VIII clauses in Ingenious Media and the interpretation of ouster clauses in Privacy International. In addition, if the principle of legality were just a principle of statutory interpretation, we would expect to see the courts looking for evidence that the legislature was aware of the fundamental principles of common law it was presumed not to legislate against. But this is not the case. Rather, courts determine the content of fundamental principles of the common law. When the intention of Parliament is used by the courts, it is as evidence of an express intention to limit a common law right, or to demonstrate that a fundamental right has been established through legislation and so may not be fully regarded as a fundamental common law right.

The courts adopt a contextual approach to the principle of legality, influenced by the importance of the fundamental common law right or constitutional principle at stake. In particular, the court is more likely to read down provisions of legislation which restrict individual liberty or which undermine a structural aspect of the constitution designed to protect rights, such as access to the courts. Moreover, courts are more likely to read down legislative provisions when determining the scope of powers granted to executive bodies. The principle of legality’s status as a constitutional principle is reinforced by the way in which the courts will allow express words in legislation to empower the executive to restrict fundamental common law rights, but only to the extent that this any restriction on fundamental rights is as narrow as possible, almost akin to an application of the principle of proportionality (see UNISON).

Second, CCSU demonstrates the ability of the courts to draw on fundamental common law principles to control actions of the executive. If judicial review is no longer restricted to the review of powers granted to the executive by legislation, then this means that courts must be able to assert their own controls over executive power, drawing on principles of the common law. This is true regardless of whether we see this as an inherent common law power of the courts, or because we presume the legislature has delegated this function to the courts. Whilst the wording of legislation may place limits on the extent to which the court can use the common law to restrict executive powers, it is no longer the case that only the legislature can place limits on the powers of the executive. As such, a principle akin to the principle of legality could and should apply to prerogative powers. Indeed, this is tacitly recognised by Lord Carloway in Cherry, where he argues that the control of the court over the use of the prerogative power to stymie the will of Parliament ‘follows from the application of the common law, informed by applying “the principles of democracy and the rule of law”’ (at [51]), citing Moohan v Lord Advocate.

In Miller 1 the court drew on earlier case law to explain how the common law restricts the scope of broad prerogative powers. The time is right for the Supreme Court to build on these earlier cases, recognising a further sister principle to the principle of legality, restricting the scope of all prerogative powers so that they do not extend to undermining fundamental constitutional principles – including democracy and the separation of powers. To do so is not to interfere with a political decision as to the timing or length of prorogation. Rather, it is to accept that a broad prerogative power does not extend to include the use of that prerogative to undermine fundamental principles of the constitution. Political choices are bound by legal limits. The courts are both constitutionally and institutionally suited to determine the limits of the law.

I would like to thank Paul Craig and Hayley J. Hooper for their excellent comments on earlier drafts.

Alison L. Young, Sir David Williams Chair of Public Law, University of Cambridge

The brilliant accident of our form of constitutionalism is not just that the executive came to be accountable to an assembly. It is that the assembly came to be responsible for the executive –for its membership, its policy, its operation, everything. Prorogation, in particular, concerns the operation of the proceedings of Parliament, and it is the representatives of the people (and the people themselves in an election) who ought to have, and to exercise, responsibility for holding the Prime Minister to account for misconduct in proroguing. If the judges were to accept the novel claims in Petition of Cherry and other/s [2019] CSIH __ and R (Miller) v Prime Minister No 2 [2019] EWHC 2381 (QB), and forbid the Prime Minister to stymie Parliament with a prorogation, they would disrupt that responsibility.

And the present political crisis is no time to be changing the constitution. It would be better for the courts to adhere, in spite of the worst of political machinations, to a structure that is more sustainable and robust than people tend to remember. This is no time to panic, and judicialize the operations of Parliament.

Are these claims really novel?

The decision of the Inner House in Cherry on 10 September 2019 was the first in UK history to hold that stymieing Parliament by a prorogation is against the law. And in the days before the Fixed Term Parliaments Act, it was never held to be unlawful for the government to stymie Parliament by a dissolution. But the claimants in the Cherry case and Miller No 2 (‘the claims’) rely on the most orthodox propositions of administrative and constitutional law (‘ordinary public law principles’, as the claimants put it in Miller No 2 [23]): that executive power cannot lawfully be used for improper purposes, and that Parliament is sovereign. The two arguments connect, of course: it is because of the sovereignty of Parliament, according to the claimants, that it is improper –and therefore unlawful– to stymie Parliament.

There is a strong allure in these arguments for judicial action against abuse of power. But I will argue that they only misapply the principles that demand judicial interference in the great improper purposes cases such as R v Foreign Secretary, ex p World Development Movement [1995] 1 WLR 386 and Padfield v Minister of Agriculture [1968] AC 997. To Professor Paul Craig and to others, it seems deeply unattractive to say that an abuse of power should not be subject to judicial control. But it is no accident that there is no legal authority for judicial review of the prerogative to prorogue, and there is a cogent reason of constitutional principle for the judges not to invent that form of supervision of proceedings in Parliament.

The Inner House in Cherry held that the judges must prevent the Prime Minister from using prorogation to stymie Parliament. The English Divisional Court (like Lord Doherty in the Outer House of the Court of Session) held that the judges cannot do so: ‘that is not territory in which a court can enter with judicial review.’ [55] Suppose, as Nicola Sturgeon put it, that ‘The prime minister’s behaviour has been outrageous and reckless, and has shown a complete disregard for constitutional rules and norms.’ Or that, as Lord Brodie put it in the Inner House in Cherry, it was ‘…an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities’. Then what the Prime Minister has done is worse than many unlawful uses of executive power. You see the attraction –we can all feel it– in thinking that the judges must be prepared to step in.

But ‘executive power’ is not a thing that is subject to uniform judicial supervision. Lord Doherty at first instance in the Outer House in Cherry got the most important point on the table when he said that the judges’ role depends on the type of executive power: ‘The court’s role in relation to prerogative powers is dependent on the nature and the subject matter of the power or its exercise’ [13]. That dependency is at the heart of this case.

In Miller No 2, the claimant’s counsel, Lord Pannick, offered an account of the dependency: the courts have reason to be more or less cautious (and sometimes very cautious) in concluding that a power has been exercised for improper purposes [27], [37]. The Divisional Court held, instead, that ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable in Her Majesty’s courts’ [68] (cf ‘the decision of the Prime Minister was not justiciable.’ [1]). And Lord Doherty ruled in the Outer House that ‘the claim is non-justiciable’ [13].

Justiciability and non-justiciability in administrative law are, primarily, properties of issues or questions, rather than of exercises of power, or of claims. In GCHQ [1985] AC 374, for example, the judges decided that they could not answer the question of whether there would be a serious risk to national security if the Prime Minister consulted the applicant Union. The Union lost because in order to decide in the Union’s favour, the judges would have needed to answer that non-justiciable question.

The ‘non-justiciability’ here is a different matter: it is a property of the decision to prorogue, according to the Divisional Court in Miller No 2 [1], [68]. Lord Doherty treated it as a property of the claim [26], [27]. It may be the case that non-justiciable political questions would need to be answered in order for the judges to say whether the Prime Minister’s purposes were proper. The judges of the Divisional Court in Miller No 2 certainly considered that such questions arose in the case; this would have been enough to justify their decision to reject the claim (as in GCHQ). But they held something stronger: that ‘The question of justiciability comes first, both as a matter of logic and of law.’ That is, it seems that they would not be prepared to pass judgment on the propriety of the Prime Minister’s purposes, regardless of the facts. Imagine that an alleged improper purpose involved no political question that judges cannot appropriately answer. There would still be no judicial review, on the Divisional Court’s approach. It is not just that the judges should be very cautious; they should not even ask, for the purpose of a challenge to the lawfulness of a prorogation, whether the Prime Minister’s purposes were proper.

That result –which seems intolerable to some lawyers, and to the claimants– is, with respect, exactly right. In the great cases on improper purposes in administrative law, Lord Pannick’s approach is a sound approach to the dependency of judicial review on the nature of the case: the judges should be more or less cautious, in answering questions that are less or more ill-suited to judicial decision. But in those cases, the power in question (to initiate a statutory inquiry; to spend overseas development money…) is not the Prime Minister’s power to regulate a Parliament that is responsible for his tenure in office, to which he is accountable, and on which he is utterly dependent. The dependency of the judicial role on the nature of the power is more radical than Lord Pannick’s argument suggests. It is a matter of constitutional principle that the House of Commons should have responsibility for responding to wrongdoing in the exercise of the Prime Minister’s power over its own proceedings.

The Divisional Court’s term, ‘non-justiciable’, needs disambiguating; lawyers use it both when it is more or less unsatisfactory for judges to base a decision on their own answer to some question, and also when it is unsatisfactory for judges to hear a claim, or to interfere with a decision. The Divisional Court’s reasoning in Miller No 2 is justified; the justification could alternatively be expressed accurately without using the word ‘justiciability’. It could be expressed by saying that the common law does not regulate the scheduling of parliament proceedings. As a result, the case that the prorogation was unlawful lacks its very first premise.

It would be an inauthentic contribution to democratic politics, if judges gave the Prime Minister their seal of approval for his truthfulness and for his purposes in a prorogation. Likewise, if they inflicted on the government their adverse take on this political move. It is not merely that the judges would have difficulty answering the questions at stake; it would be inauthentic because while any of us can pass judgment on a Prime Minister’s truthfulness and his purposes, the judges would be giving the binding authority of their court to their own answers to these questions of parliamentary politics. This form of ‘non-justiciability’ –as the Divisional Court called it– arises because the judges’ supervision would diminish Parliament’s responsibility for its own operation.

Extreme prorogation

Here is one potentially good argument for judicial interference: that it might be necessary in the interests of constitutional governance, where the Prime Minister is able to prevent the House of Commons from exercising the very form of control that, I have said, it ought to exercise. The argument is, as Jake Rowbottom has put it, that:

‘the matter cannot simply be left to the ordinary political channels to express opposition to the measure, as those ordinary channels are being closed down for a temporary (yet crucial) period.’

That is not this case. Parliament was not stymied by the prorogation; it was energised. It legislated in three days to require the Prime Minister –against his headline policy– to seek an Art 50 extension. The House of Commons could have thrown his government out. It could have done so after the legislation was passed. The House could have agreed to either of the Prime Minister’s proposals for an early general election. There is no need, in Miller No 2, for the judges to step in where the House of Commons cannot respond to the Prime Minister’s conduct.

Now what if we imagine the worst: a prorogation sine die (perhaps to avoid a vote of no confidence). Do we need the courts to protect us from that? The government would run into the buffers of its own need, in the 21st century, for frequent parliamentary sessions, and eventually the Fixed Term Parliaments Act would require a general election. But it would never come to that; ordinary day-to-day politics prevents prorogation sine die. No Prime Minister could hold together a party while doing that. There isn’t actually a need for judges to be on standby to fill in for a House of Commons that is prevented from discharging its own responsibility.

Conclusion

The House of Commons does not need the courts to take over its responsibility for holding the Prime Minister to account for scheduling sessions. The courts and the politicians should adhere to the principle that the representatives of the people are exclusively responsible for the operation of Parliament, subject to their accountability to the voters in a general election. That would be better than diminishing their political responsibility through judicial supervision of Parliament’s proceedings.

In fact, I cannot see that this is the time for constitutional innovations, of any kind, at all. I am not saying ‘Don’t worry’. On the contrary, I think the situation is so grim, that we cannot afford to panic.

Timothy Endicott, Professor of Legal Philosophy, University of Oxford and Fellow in Law, Balliol College

In R (Miller) and Others v The Prime Minister (hereinafter Miller No.2), the High Court of England and Wales found that the decision of the Prime Minister to advise the Queen to prorogue parliament was non-justiciable. In doing so, the judgment reveals the propensity of the judiciary to be much more protective of its own empire than that of the legislature. Ultimately, however, it is an approach that undermines both due to the creation of a legal black hole.

Legal holes and Miller No.2

Legal black holes are zones formally created by law within which, no recourse to the law can be made. A legal black hole is thus created when there is no legal control on the body exercising the power in question, leaving the decision-maker free to exercise their absolute discretion. At best, all the judiciary can ask is whether the legal black hole was validly created. There is therefore a close link between legal black holes and non-justiciable or political questions. Legal black holes should be distinguished from what David Dyzenhaus refers to as legal grey holes—questions of law which courts state that they do have the capacity to review; however, the review exercised is so light touch that it is essentially meaningless. Dyzenhaus contends that legal grey holes are more dangerous than legal black holes as the former cloak the decision with a thin veil of legality, thus legitimising them in a way that a finding of non-justiciability does not.

In Miller No. 2 the approach of the Court is to essentially create a legal black hole regarding the exercise of the prerogative power to prorogue Parliament. The Court found (at [51]) that:

The Prime Minister’s decision that Parliament should be prorogued at the time and for the duration chosen and the advice given to Her Majesty to do so in the present case were political. They were inherently political in nature and there are no legal standards against which to judge their legitimacy.

Ostensibly, this appears to be an exercise in judicial restraint albeit one that creates a legal black hole. What Miller No. 2 shows, however, is how a finding of non-justiciability can, nevertheless, legitimise a decision. Even such a thin conception of the rule of law such as that deployed to create a legal black hole can add a degree of legitimacy to a decision. This thin veil of legitimacy, however, is further compounded when the court accompanies its finding of non-justiciability with an implicit endorsement of the reasons given by the decision-maker. This is essentially what the Court does in Miller No. 2 (at [51]):

The evidence shows that a number of considerations were taken into account. We have summarised them extensively already. They included the need to prepare the Government’s legislative programme for the Queen’s Speech, that Parliament would still have sufficient time before 31 October 2019 to debate Brexit and to scrutinise the Government’s conduct of the European Union withdrawal negotiations, that a number of days falling within the period of prorogation would ordinarily be recess for party conferences, and that the current parliamentary session had been longer than for the previous 40 years…

Miller No. 2 is thus an example of the negative effects of a legal black hole and a legal grey hole. If the risks of a legal black hole are to be mitigated, their inherent illegitimacy must be acknowledged. Courts must therefore refuse to look at the decision-maker’s reasoning out of risk of endorsing this reasoning— explicitly or otherwise. For this reason, the courts were correct (at [41]) to reject Lord Pannick’s submission that the court should:

…explore the facts first, for the purpose of deciding whether there has been a public law error, and then turn to justiciability; and then in the limited sense of deciding whether “caution” should forestall intervention.

Lord Pannick’s suggestion would have the benefit of gaining some sort of judicial disapproval in a case which was ultimately lost on the justiciability question; however, the opposite occurs in the instant case where no error has been identified.

The consequences of legal black holes

It may be that the Court implicitly acknowledged the Government’s case regarding the purpose of prorogation in order to reassure itself of the ramifications of its judgment. This too can be seen by the Court (at [66]) downplaying hypothetical arguments pertaining to the consequences of a finding of non-justiciability:

We do not believe that it is helpful to consider the arguments by reference to extreme hypothetical examples, not least because it is impossible to predict how the flexible constitutional arrangements of the United Kingdom and Parliament itself, would react in such circumstances.

The difficulty with this argument, however, is that the doctrine of non-justiciability necessitates extreme hypotheticals due to its ‘all or nothing’ quality. If a five week prorogation is non-justiciable, then so too is a five month prorogation or longer. The question is non-justiciable in all instances, not just on the facts presented before the court. Indeed, it is these very extreme hypotheticals that assist in distinguishing a legal black hole from the even more sinister zone beyond law, the latter of which resemble Carl Schmitt’s contention that sovereign power exists prior to the legal order and thus cannot be constrained by law. While most legal black holes do not give rise to this risk, those that have the potential to usurp fundamental constitutional norms do.

At the time of writing, the Scottish Court of Session’s judgment in Cherry on this same issue was not available; however, the court summary does suggest that it took this question of the constitutional ramifications of prorogation much more seriously:

The Lord President, Lord Carloway, decided that although advice to HM the Queen on the exercise of the royal prerogative of prorogating Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution; this followed from the principles of democracy and the rule of law.

In contrast, the Court in Miller No.2 took a narrow reading of the principle of parliamentary sovereignty, rejecting (at [63]) ‘Lord Pannick’s formulation of a wider legally enforceable concept of Parliamentary Sovereignty, distilled to its essence as an ability to conduct its business unimpeded’ on the basis that it runs into ‘difficulties in identifying measures against which allegedly offending action may be judged.’ Equally, however, similar criticisms could be levied at the concept of the rule of law developed and applied in seminal cases such as Anisminic, Evans, and more recently, Privacy International.

Conclusions

It would appear therefore that while courts have jealously guarded their own jurisdiction, should the Supreme Court follow the judgment of the High Court, they would not have afforded Parliament the same courtesy they afford themselves. Thus while a finding of non-justiciability may ostensibly appear the court to be exercising judicial restraint, it is done so in a highly problematic manner, opening up the aforementioned judgments to further accusations of judicial activism.

Ultimately, when there is a clash between the legislature and the executive, it is inevitable that the judiciary gets asked to adjudicate. I would contend that abandonment of non-justiciability in favour of a spectrum of deference is a more nuanced and flexible approach. Such an approach would avoid the aforementioned risks of a legal black hole and take proper account of high political issues that courts may not be suitable for a court to second-guess. It remains to be seen what approach the Supreme Court takes.

Alan Greene is a Senior Lecturer in public law and human rights at Birmingham Law School.

Introduction: extension and the Rule of Law

On 9 September, the EU (Withdrawal) (No.2) Act 2019 (‘Benn-Burt Extension Act’) received Royal Assent. The Benn-Burt Extension Act imposes a statutory duty upon the Prime Minister (if the relevant conditions are met) to request and accept an extension of the withdrawal negotiating period under Article 50(3) TEU. However, the Prime Minister has repeatedly stated that he will not request such an extension, ostensibly in clear conflict with the statutory obligations in the Act.

This reticence has prompted criticism over the Government’s commitment to the Rule of Law, and has given rise to speculation as to whether the obligations of the Benn-Burt Extension Act can be circumvented legally. The Foreign Secretary has even stated that the Government will ‘test the law to the limit’. Boris Johnson faces a trilemma: (1) avoiding an extension to Article 50; (2) remaining Prime Minister; and (3) not violating the Rule of Law.

This post argues that no legal interpretation of the Benn-Burt Extension Act can reconcile the Government’s position with the obligations under the Act. The Act places control over avoiding a further extension in the hands of the House of Commons. This can be realised through the House of Commons approving a Withdrawal Agreement under section 1(1), or approving withdrawal without an agreement under section 1(2) before 19 October. This post highlights a third, less obvious scenario whereby the UK could find itself back on the road to a ‘no deal’ exit on 31 October: if the House of Commons decides, under section 3(3) of the Act, to reject an extension proposal from the European Council to a date other than 31 January 2020. It is therefore crucial that both the European Council and the House of Commons understand the implications of section 3 for a no deal Brexit in making their respective decisions on extension.

The third scenario and operation of the Act

This third option depends on the following scenario: the conditions under section 1(1) and 1(2) have not been met; therefore the Prime Minister is obliged under section 1(4) to send the extension request letter in the form mandated by Schedule 1 of the Act. This is predicated on the position that, before 19 October, the Prime Minister may not rely upon any executive power outside the scope of section 1(4) in order to request an extension that does not comply with the form detailed in Schedule 1. The next step of the scenario would be for the European Council to propose an extension to a date other than 31 January 2020 (the date specified in section 1(4)) in response to this request.

This would trigger the conditions in section 3(2) and section 3(3) of the Benn-Burt Extension Act. Section 3(1) holds that if the European Council were to grant an extension to 31 January, the Prime Minister must immediately accept it. By contrast, if another date is proposed, then section 3(2) introduces a dual temporal condition: acceptance must occur either (1) within two days, or (2) before the end of 30 October, depending on whichever is sooner. Section 3(3) then provides an exception to this condition that empowers Parliament to decide upon the new extension date: if the House of Commons were to decide not to pass a motion within the section 3(2) time-period, then the obligation for the Prime Minister to accept does not apply.

In this scenario, an executive discretion for the Prime Minister, provided for in section 3(4), becomes operative. The provision states that “[n]othing in this section shall prevent the Prime Minister from agreeing to an extension…otherwise than in accordance with this section”. The House of Commons Library explains the effects of these words: ‘If the House of Commons “decides not to pass” a specifically worded motion approving the extension, the Prime Minister then has a free choice whether or not to agree to the extension under subsection 3(4)”.

On this reading, any pre-existing executive power to request extension for a different period, as exercised by the previous Prime Minister Theresa May on 20 March and 5 April 2019, has been limited by the provisions of section 1 and section 2 of the Benn-Burt Extension Act. This raises an important distinction between the Benn-Burt Extension Act and the first EU (Withdrawal) Act 2019 (‘Cooper-Letwin Extension Act’). Section 1(6) of the Cooper-Letwin Extension Act states that ‘nothing in this section prevents a Minister of the Crown from seeking, or agreeing to, an extension’ (emphasis added). The Prime Minister had already requested a second extension on 5 April 2019, before the Cooper-Letwin Extension Act received Royal Assent on 9 April. But if Theresa May had only sought the extension after the Act had come into force, she would have been able to request an extension to a date other than that passed in a House of Commons motion under section 1(2) of the Act, provided that this extension would have ended later than 22 May 2019. By contrast, the present Benn-Burt Extension Act does not permit the Prime Minister to seek any extension other than one which conforms to the terms of the Act.

The crucial point is that, within this scenario, any executive discretion for the Prime Minister is limited to the acceptance of any extension offered by the European Council. The Prime Minister would only be free to accept or reject an extension offer from the European Council upon the fulfilment of the very narrowly defined circumstances detailed above. Crucially, the House of Commons remains in control, as section 3(3) of the Benn-Burt Extension Act requires the House of Commons to reject the extension before the Prime Minister’s discretion is activated.

Conclusion: the responsibility of the European Council and the House of Commons

Significantly, the scenario outlined above depends entirely upon the European Council. Subject to the unanimous agreement of the 27 heads of state or government, the institution enjoys discretionary power under Article 50 TEU over whether to grant a request for an extension, up to what date, and subject to what conditions. The United Kingdom retains the power, under Article 50(3) TEU, to agree to these conditions, a power which in domestic law has now been regulated by the Benn-Burt Extension Act.

It is paramount, therefore, that the European Council is aware that the consequences of a decision to set an extension date other than 31 January 2020 could set in motion events that may lead to the United Kingdom withdrawing without agreement on 31 October. This would arguably even be the case if the European Council grants a ‘flextension’, with different dates dependent upon different conditions, as it did for the first extension Decision of 22 March 2019, and the second extension decision on 11 April 2019. In turn, the House of Commons must be aware that a decision under section 3(3) not to accept a different date or dates would hand power back to the Prime Minister to reject an extension. The Act has severely restricted the road to a no-deal Brexit on 31 October, but it has not entirely blocked it off.

The author would like to thank Jack Simson-Caird, Paul Craig, and Graeme Cowie for comments upon earlier drafts of this piece.

Oliver Garner is a Brexit Research Fellow at the Bingham Centre for the Rule of Law, British Institute of International and Comparative Law, and a Ph.D. candidate in the Law Department of the European University Institute.

In dramatic scenes in the House of Commons on 3 September 2019, the House wrestled control of its proceedings from the Government so it could pass legislation to prevent the UK crashing out of the EU. The legislation received Royal Assent less than a week later. As the political and constitutional implications continue to reverberate, there is at least one constitutional issue thrown up by the events which has not so far been remarked upon, swamped as it has been by issues of far greater moment. It is nonetheless worthy of comment.

As the debate in the House of Commons stretched deep into the evening, past the 9pm watershed, the Leader of the House could be seen lounging across the front bench, at times with his eyes closed, with an affected lack of concern with events unfolding around him. Tom Brake MP (LD) asked if the Leader of the House wished to be provided with a pillow to make himself more comfortable. Gavin Newlands MP (SNP) informed reporters that Mr Rees-Mogg was having, “a (u)kip on the front bench”. The Member for Brighton Pavilion, Caroline Lucas (Green) was more direct in her criticism, accusing Mr Rees-Mogg of being “contemptuous of the House and of the people”.

An image of the Leader of the House in his especially sedentary position, apparently taken from the opposition benches by Anna Turley MP (Lab), rapidly became an internet meme. Dozens of versions of the image, variously depicting Mr Rees-Mogg in ladies stockings, in a nightcap clutching a Teddy Bear wearing an “I Boris“ T-shirt, and as an advert on a new IKEA furniture range (MÖGG), amongst many others, were soon circulating on twitter. These images were rapidly joined by others, such as Mr Rees-Mogg lying across the lap of an adjacent MP, using clips from the live Parliamentary feed. The images were reproduced on news and magazine websites shortly afterwards. Mr Rees-Mogg was even projected onto Edinburgh castle sprawled across the words “Lying Tory”. A selection of the images was reproduced in the New European, including that depicted below:

In this country, the freedom to lampoon our politicians is a cherished part of our democratic traditions and is recognised as a fundamental aspect of our freedom of speech. Parliament itself has a page on its own website praising the “distinctive and innovative” tradition of political satire in Britain and reproducing images from its own collection of Gillray, Hogarth and Doyle, amongst others.

Modern technology and the internet have enabled anyone who has some IT know-how, a sense of humour and a twitter account to participate in this fine British tradition.

What makes the Rees-Mogg affair significant is that the images that have tickled and enraged come from the debating chamber of the House itself. Because, for all that it extolls the virtues of satirical cartoons, Parliament has prevented the use of images of debates on the floor of the House of Commons or the House of Lords for satirical purposes. It has done so through austere and out-dated rules on the use of the footage of Parliamentary debates. These rules date back to the first use of television in the House of Commons in 1989 and appear to reflect concerns that the use of television images from Parliament for satirical purposes would damage the dignity of Parliament.

The rules forbid the use of copyright material from the Parliamentary feed in any “light entertainment programme” or programme of “political satire” and they state that material embedded in websites, “cannot be edited in any way”. The rules are enforced through the law of copyright (each House owns the copyright in the footage of its own proceedings) and the law of contempt of Parliament.

The issue came to the fore in 2011 when Channel 4 decided not to air an edition of the American Daily Show hosted by John Stewart because it included clips of proceedings in the House of Commons in which David Cameron, then Prime Minister, was robustly questioned about his relationship with Rupert Murdoch during the phone hacking scandal. The joke was not in fact on Cameron but on the deference shown to Presidents in the US. John Stewart teasingly extolled the robust questioning and equally robust answers of Prime Minister’s Question Time (“England is AWESOME!”). The episode remains available on the internet. Following Channel 4’s decision not to broadcast his show, John Stewart’s praise of UK Parliamentarians for their thick skins turned to bemusement: how can it be, he asked, that the, “people’s Parliament…the most basic expression of British democracy, is too fragile to withstand a gentle parody, a good natured kick to the clotted creams?”

The matter surfaced again in 2016 when Chris Grayling, then the Leader of the House of Commons refused a request to change the rules. At the time, Rory Bremner pointed out that the rule was unsustainable in the internet age.

Rory Bremner was right, as the Rees-Mogg episode demonstrates. The rules have long represented an unjustifiable and overly-broad restriction on freedom of expression, but they look faintly absurd today, when the internet is saturated with doctored images of Mr Rees-Mogg in various states of horizontality.

Ironically, it is European Union law that has come to the aid of British political satire. The Infosec Directive (2001/29) allowed Member States to make an exception to copyright infringement for use that constitutes “caricature, parody or pastiche”. In 2014 an exception was dutifully made to the Copyright Designs and Patents Act 1988 to this effect (s.30(A)). Whether the consequence was fully appreciated at the time or not, the amendments were made to the part of the Act which expressly applies to the Houses of Parliament and therefore provides a defence to any use of Parliamentary copyright material for the purpose of caricature, parody or pastiche, so long as the use is “fair use” as defined in copyright law. Any licence conditions to the contrary are overridden.

The provisions of the CDPA also mean that fair use of Parliamentary copyright for caricature, parody or pastiche cannot be a contempt of Parliament: Parliament has, by amendments to an Act of Parliament, authorised such use. It is doubtful whether contempt of Parliament has any role to play in this context in any event. In Demicoli v Malta (1991) 14 EHRR 47 the European Court of Human Rights found that the House of Representatives of Malta had breached Article 6 when it found the editor of a satirical periodical guilty of contempt for describing a Minister as a clown for his performance in a parliamentary debate.

Despite these developments, the Parliamentary rules remain unreformed and over-broad. Prohibiting misleading or abusive use of copyright material does not require such restrictions. Both the common law and Article 10 of the ECHR protect freedom of expression and the ability to poke fun at our elected representatives, often with implicit political criticism, is an important form of political speech.

The rules of parliamentary contempt are currently being examined by the Committee of Privileges. There are certainly contexts where the rules on contempt need to be reinforced, such as the powers of Select Committees to secure evidence (as suggested in the March report of the Committee of Privileges admonishing Dominic Cummings). But there are other contexts where these anachronistic rules need to be limited and clarified. The use of Parliamentary copyright material is one such context.

The Rees-Mogg affair draws attention to the need for Parliament to look again at its overly deferential and outdated restrictions on the use of images of proceedings in Parliament. Political satire is a cherished aspect of freedom of expression in this country. As well as often carrying a powerful political (or anti-political) message, it provides welcome light relief in tumultuous political times.

Thanks to Professors Jeff King and Gavin Phillipson for commenting on a draft.

This post follows on from a previous piece where I attempted to set out the general rules, and a flowchart, to create a route map in the event of a vote of no confidence. This post seeks to address the narrower question of what could happen if the Prime Minister (‘PM’) refused to send the letter to extend the Article 50 process and instead decided to announce the resignation of the Government before the deadline. This post assumes that the resignation would be by the whole Government on the grounds that collective responsibility on its central policy would apply in all the circumstances.

It is a convention that prime ministers should, where possible, give sufficient notice of their resignation so that an alternative prime minister can be identified. In those circumstances, let us suppose that the PM announces to the House of Commons on its return on Monday 14 October that the Government will formally resign on the morning of Friday 18 October rather than send the letter under the Act.

The Queen must have a Government

One of the most central rules of the constitution is that the Queen must have the benefit of ministerial advice. Such an announcement by the PM would thus require that a new PM be chosen to form a new government. In my previous post I argued that the new PM would normally have to be nominated by the largest party or grouping in the House of Commons in order for the candidate to be clearly best placed to command the confidence of the Commons. It is a matter of numbers.

The rule that a new PM must come from the largest party or grouping is universally agreed if the largest party or grouping has an overall majority. My view, as argued before, is that the starting point should be the same in situations where there is no overall majority because such a rule would be clear, simple and rational. It is also arguably the best way to ensure that the Queen is never drawn into the political arena.

Others disagree, however, and argue that where there is not an overall majority for any party or grouping, then there must be negotiations between the major parties until a settlement is reached. Of course this increases the possibility that the Queen could be drawn into the situation in extremis – indeed some commentators would defend that option as a last resort. The author respectfully demurs from the latter view as incompatible with a modern democracy.

My own view remains that if, for some reason, the largest party or grouping cannot, or will not, nominate a new PM, then, if all else fails, the Commons must decide who is best placed by a vote or votes on motions in the Commons for that purpose. Such motions could possibly be drafted along the lines of “This House believes [X] is best placed to command the confidence of the House of Commons”. Other commentators may have alternative potential solutions to suggest.

Immediate steps after announcement of imminent resignation as PM

The first point to note is that the PM, and the Government, has the absolute right to resign at any time. The Government cannot be forced to stay in office. The convention that the PM waits for a successor is important, but ultimately cannot trump the right to resign.

It is important to note that Mr Johnson could remain as the leader of the Conservative Party even after the Government resigns, unless he is brought down within his party by Conservative MPs. If he was deposed as leader, a temporary replacement would be likely pending a full Conservative party leadership election. This post assumes Mr Johnson would continue as leader of the Conservative Party.

The second point is that the scenario explored in this post could create exactly the unusual circumstances that were suggested above where the largest party or grouping cannot, or will not, nominate a new PM. Mr Johnson could announce that no Conservative MP is permitted to accept any offer to be PM and keep the whip. That would rule out 288 Conservative MPs from being PM unless they resigned the party whip. (It would also circumvent my suggested rule – to recap, my suggested rule is that a new PM must normally be called from the largest party or grouping because, as a matter of pure numbers, no one else is likely to command greater numerical support).

Who then would be best placed if all whipped Tory MPs refuse to be PM?

There is a long-standing traditional answer as to who should be called in these kinds of situations. The next in line to be PM in such circumstances is the Leader of the Opposition (‘LOTO’). LOTO is currently Mr Corbyn. He is supposed to stand ready, constitutionally, to step in, if necessary, as PM.

Mr Corbyn, as the leader of the largest party outside the Tory/DUP grouping would therefore appear to be the default option to be called by the Queen in these circumstances. If there was any other opposition grouping that formed which somehow outnumbered Mr Corbyn, the leader of that grouping could claim to be best placed to command the confidence of the Commons. It is fair to say that this possibility seems quite unlikely but if it happened, it might well involve negotiations between the smaller parties and some Labour MPs, and if necessary votes in the Commons as previously discussed. The rest of this post will assume, however, that Mr Corbyn would be called to the Palace and become PM.

Recommending a successor?

Suppose the PM and the Government therefore formally resigns on the morning of Friday 18 October. It is sometimes argued that the incumbent PM has a duty to ‘recommend’ a new PM. This is mistaken. Of course giving formal advice would frequently be entirely illogical because such formal advice by the PM to the Queen is predicated on having the confidence of the Commons. If a PM loses confidence and someone else is best placed to command confidence, how can the incumbent have the standing to advise who else has confidence?

The manufacturing of a duty to ‘recommend’ who to appoint, has somehow been distinguished from formal advice by some commentators. On close examination, it is suggested that the idea is equally hard to follow as a matter of logic. Why is the former PM’s opinion relevant or probative? It is the Commons that has the duty to identify a successor, through the party system or otherwise. A former PM may be asked his or her opinion out of courtesy, but equally, it would be no problem if they were not.

In the current case, therefore, Mr Johnson would be under no duty to recommend a successor. Nor would he be likely to want to make any recommendation in these circumstances. He would be under no obligation to do so.

Sending the Letter

One of the first acts of Mr Corbyn, as the new PM, would be to send the letter mandated in s 1(4) of EUW2 and set out in the Schedule to the Act. Presumably this would happen later on Friday 18th October to meet the deadline of Saturday 19 October. No doubt any new date could be swiftly agreed with the EU27, unless the extension was refused, and the relevant statutory instruments under the European Union (Withdrawal) Act 2018 to change the date in domestic law could be laid immediately – possibly over the weekend.

New Prime Minister and new Leader of the Opposition

If he remained leader of the Conservative Party, Mr Johnson would then become the new Leader of the Opposition. Mr Corbyn would be the new Prime Minister. The next steps would appear to follow logically. As the new Leader of the Opposition, Mr Johnson would have the right, by convention, to seek and obtain the parliamentary time to bring a statutory vote of no confidence (‘VoNC’) `in Her Majesty’s Government, led by Mr Corbyn, under the Fixed-term Parliament Act 2011 (‘FtPA’). He might well bring a VoNC at the earliest opportunity.

Two outcomes are possible. If Mr Corbyn were to win the VoNC, he would stay on as the new PM and take over negotiations with the EU27 over Brexit. The numbers would appear to be against him, however. He has only 247 MPs in his party. The possibility cannot be ruled out, however, especially in these febrile times.

If Mr Corbyn were to lose the VoNC, a 14 day period would be triggered under the Act. The most likely subsequent outcome would be that the 14 day period simply runs out and an election ensues with Mr Corbyn as the new PM and Mr Johnson as the new Leader of the Opposition.

Alternatively, Mr Corbyn could win a subsequent a vote of confidence under the FtPA. This is a separate procedure to the VoNC procedure. Such votes of confidence can be brought in the 14 day period by Her Majesty’s Government. They require 50%+1 of the vote in the Commons. If Mr Corbyn won such a vote of confidence within the 14 days, he would then stay on as PM.

There is another possible outcome, although it would seem quite unlikely. If, within 14 days, Mr Johnson were to be able to demonstrate that he could form a government and that he was in fact clearly best placed to command the confidence of the Commons instead of Mr Corbyn, he might argue that Mr Corbyn would have a duty to offer his resignation to the Queen, or be dismissed. The Queen would then have a duty to reappoint Mr Johnson as PM. This potential pathway would face the same difficulties as discussed above where there is no grouping with an overall majority. There are no circumstances, it is suggested, where the Queen could ever be involved.

Mr Johnson’s next steps if he is reappointed by the Queen as PM

If reappointed, Mr Johnson would then have two choices. He could bring a vote of confidence under the FtPA. Mr Johnson now has only 288 MPs plus 10 DUP MPs so there is no way to know if he would succeed in passing a vote of confidence. If he did succeed, he would continue as PM and the situation would in effect return to the status quo ante save that there would be a new date for Brexit, agreed by Mr Corbyn.

Alternatively, Mr Johnson could choose not to bring a vote of confidence under the Act (it is not obligatory). Or he could lose the vote of confidence, if he brought one. After 14 days an election would then be triggered and would follow under the normal procedures of the FtPA but with Mr Johnson as PM.

Conclusion

Mr Johnson has said he will not send The Letter mandated in EUW2 and he wants there to be an election. He may yet achieve both goals – and might even fight an ensuing election as Prime Minister.

The author would like to thank Gavin Phillipson, Alison Young and Peter Ramsay for their helpful comments on a previous draft.

(Suggested citation: R. Craig, ‘What Could Happen Next If the Government Resigns Rather than Send the Letter to the EU?’, U.K. Const. L. Blog (11th Sept. 2019) (available at https://ukconstitutionallaw.org/))

Statutory ouster of judicial review has long been considered to offend the rule of law. But just what does the rule of law demand in this context, and is ouster really inconsistent with those demands in all circumstances? Some interesting answers to these questions feature in R (Privacy International) v Investigatory Powers Tribunal.

At least since R v Hull University Visitor ex p Page, the landmark decision in Anisminic Ltd v Foreign Compensation Commission has been understood as establishing that all errors of law are jurisdictional in the sense that they render decisions ultra vires (and error of law in this context encompasses all grounds of judicial review). Flowing from that position, it had generally been assumed that any statutory ouster of judicial review must be contrary to the rule of law.

Discussions of ouster have focused on whether and to what extent Parliament has power to achieve this (the constitutional issue), and if so, whether it has achieved it in the particular legislation (the statutory interpretation issue). In Privacy International, these were the two questions posed for the Supreme Court’s determination. On the interpretation issue, as is well known by now, a majority of 4 to 3 held that the purported ouster of judicial review of decisions of the Investigatory Powers Tribunal (IPT) was ineffective. The words in s 67(8) of the Regulation of Investigatory Powers Act 2000 (RIPA) were not sufficiently clear to displace the strong presumption against ouster of judicial review. This amounts to a ringing reaffirmation of Anisminic orthodoxy on the interpretation issue – hence the title of a blog post by Jonathan Metzer: “Anisminic 2.0”. On the constitutional issue, the plurality judgment indicated a view that Parliament probably lacked the power to effectively oust review at all. That would amount to going beyond Anisminic and abandoning its constitutional orthodoxy, but it was obiter and not supported by a majority.

What is less obvious but especially interesting in the Privacy International decision is a different departure from Anisminic. Two of the judgments, together representing five of the seven members of the Court, abandon the Anisminic-derived absolutism about the demands of the rule of law: they accept some limits to the required scrutiny for errors of law. (The decision in R (Cart) v Upper Tribunal (Public Law Project Intervening) had already taken this step, but only in the particular context of the new comprehensive tribunal system.) The two judgments disagree, however, on the nature of the acceptable limits. In this post, I want to draw attention to this aspect of the case.

The limits of the rule of law’s demands: two different versions

The two judgments that qualify the judicial scrutiny required by the rule of law are the plurality judgment given by Lord Carnwath (joined by Lady Hale and Lord Kerr) and the dissenting judgment of Lord Sumption (joined by Lord Reed). These two judgments disagree on whether the ouster clause in this case was compatible with the demands of the rule of law – essentially because they focus on different aspects of the rule of law. But both take the view that some limits on review can be consistent with the rule of law.

Lord Carnwath expressly considers that the Anisminic-derived categorical approach to the scope of review based on notions of jurisdiction and nullity should give way to a more contextual balancing approach (a point noted by Paul Daly). The approach he favours is an extension of the approach established in Cart for determining the scope of review of the Upper Tribunal: the question is what degree and type of scrutiny amounts to sufficient and proportionate protection of the rule of law (paras 127-134).

A crucial part of the answer in Lord Carnwath’s view is that access to the general courts is always necessary, in order to ensure that statutory bodies do not develop a “local law” different from the general law of the land – in other words, it is necessary for ensuring consistent application of the law. That is the sense in which ouster of judicial review of the IPT’s decisions is inconsistent with the rule of law in his view (paras 138-139). The restrictions that can in some contexts be consistent with the rule of law include time limits on review, and limits on the scrutiny of questions of application as distinct from interpretation (paras 133-134). Limits of this kind, however, were not at issue in this case. As far as the IPT is concerned, he suggests elsewhere in passing that permission for judicial review of its decisions should be granted only in cases raising points of general significance (para 112).

Lord Sumption’s dissenting approach involves departing from the Anisminic-derived approach to the scope of review in a different way (paras 182-188): in essence, he would re-introduce the pre-Anisminic distinction between jurisdictional errors and errors within jurisdiction. This solution was also adopted in a slightly different context in Cart by the Court of Appeal, but was rejected there by the Supreme Court. The question in each case, Lord Sumption says, is to identify the statutory decision-maker’s “permitted field”.

His version of the distinction differs from the pre-Anisminic position, in that he would answer the question about the decision-maker’s jurisdiction or permitted field by reference to the nature and function of the decision-making body. Executive or administrative decision-makers must be subject to full scrutiny for questions of law: their “permitted field” is confined to applying the correct legal position, as determined by the courts. In contrast, bodies exercising judicial functions parallel to the High Court have power to interpret the law they apply: their “permitted field” is confined only by features that go to jurisdiction in the narrow pre-Anisminic sense (which in Lord Sumption’s version include breaches of natural justice: para 205). This can be seen as endorsing the suggestion of Lord Diplock in In re Racal Communications Ltd.

It is on this basis that Lord Sumption considers the ouster ought to be given effect in the circumstances of this case: the IPT is a judicial body with the wide “permitted field” that flows from this function, and the challenge in issue alleged an ordinary error of law, well within that permitted field (paras 197-198). Only if the IPT went outside that permitted field would the ouster no longer protect its decision, because only then would such effect render the IPT a law unto itself.

The rule of law reasoning goes to both the interpretive and the constitutional issue

Both judgments reaffirm the very strong interpretive presumption against ousting judicial review (although they do have different approaches to this): only exceptionally clear and explicit wording could achieve this. Both further agree on the qualification that the presumption applies only where ouster would be contrary to the rule of law. The main reason for the dissent, then, lies not in any fundamental difference between the approaches to interpreting ouster clauses. Rather, it lies in the different views outlined above as to whether the ouster of judicial review in this particular case is consistent with the rule of law.

On the constitutional issue, as already noted, Lord Carnwath’s plurality judgment in obiter departs from the orthodoxy that the presumption against ouster is rebuttable by sufficiently clear words, instead taking the view that Parliament lacks the power effectively to oust judicial review. However, just as the interpretive presumption only applies to ouster that is inconsistent with the rule of law, for the plurality the same goes for this constitutional limit on Parliament’s power. Even in the face of the clearest wording, it is “ultimately a matter for the court to determine the extent to which [an ouster] clause should be upheld”, and this turns on “the level of scrutiny required by the rule of law” (para 144). In this judgment, the discussion of whether the s 67 ouster is compatible with the rule of law is found in the second part devoted to the constitutional issue.

Implications: confirming that channelling of judicial review is acceptable?

Where all of this leaves the law on ouster and the rule of law is open to debate: Lord Carnwath’s discussion is part of obiter comments by a plurality rather than a majority, while Lord Sumption’s is part of a dissent. Given the differences between the two judgments as to the demands of the rule of law in this area, it may be going too far to say that the five judges who subscribed to these two judgments represent a majority and hence binding authority on any aspect of the rule of law issue. However, even short of any binding authority, it is surely significant that five of seven members of the Court in this case abandoned the Anisminic-derived assumption that the rule of law always requires judicial review for all errors of law.

This recognition of qualifications to the demands of the rule of law helps make sense of limits on judicial review that have long been accepted (a point touched on by Lord Carnwath). The most commonly noted accepted limits are statutory time limits (see Smith v East Elloe Rural DC and R v Secretary of State for the Environment, ex p Ostler. A similar accepted limit is found in provisions delaying access to review until a decision-making process has been completed (see R v Cornwall County Council, ex p Huntington [1994] 1 All ER 694). In both types of cases, courts have accepted that there can be good reasons for such limits.

The law is and has been less certain on the acceptability of limits on review in the form of requiring recourse to alternative statutory avenues, either before judicial review is available or even as the sole available recourse. In the UK, exhaustion of other remedies is a general requirement quite apart from any ouster clause. This merely delays rather than excludes judicial review.

In jurisdictions such as New Zealand, where there is no such general requirement to exhaust other remedies, courts have given effect to ouster clauses that take this form of requiring use of alternative statutory avenues. The condition is that those alternatives must represent adequate avenues of scrutiny and recourse, and that appears to require access to the High Court in some form and at some stage (see Tannadyce Investments Ltd v Commissioner of Inland Revenue). It remains uncertain and disputed what counts as adequate avenues of recourse (see H (SC 52/2018) v Refugee and Protection Officer (overturning the Court of Appeal decision discussed by Daly).

In the UK, an obiter in R (A) v Director of Establishmentsof the Security Service went even further. The Court gave effect to another provision of RIPA, s 65, that confers exclusive jurisdiction over Human Rights Act 1998 claims against the intelligence services on the IPT. The main reason was that this provision ousted no pre-existing remedy (having been enacted as part of the same package as the HRA itself). The relevant reason for present purposes, however, was that s 65 did not oust scrutiny of the intelligence services, but merely allocated that scrutiny to another body of like standing and authority to the High Court (para 23). In an obiter dictum that is now expressly overruled by Privacy International (para 109), Lord Brown further considered that there was no constitutional objection to the s 67 ouster of judicial review of the IPT (para 23). In relation to HRA claims, that would have meant that the IPT’s jurisdiction was both exclusive and final, rather than merely being a statutory avenue that had to be exhausted before judicial review could be sought.

All these statutory or common law limits operate to “channel” rather than exclude judicial review (see Paul Daly here and here). That can be seen as rendering at least some of them compatible with the demands of the rule of law. The parts of the Privacy International judgments outlined above lend support to this line of argument. The plurality judgment, however, unlike Lord Sumption’s dissenting judgment, does not support substitution of alternative statutory avenues other than the High Court as the exclusive and final remedy.

With many thanks to Paul Daly, Mark Elliott, David Feldman, Marcelo Rodriguez Ferrere and Alison Young for helpful comments on an earlier draft of this note.

Hanna Wilberg, Associate Professor, Faculty of Law, University of Auckland

Litigation is often predicated on certain assumptions. These may be the result of argumentation of the parties, the reasoning of the courts or an admixture of the two. The assumptions can take on an axiomatic character, and become ‘unchallengeable’. They may be regarded as expressive of uncontroversial facts, or perceived as inherent in the nature of adjudication. Such matters may be unpacked after the event, in academic discourse or subsequent litigation. Reflection after the event may be rewarding, but it does not change the prior decision. The importance of the present case therefore warrants some brief thoughts about three assumptions that are related but distinct, which have characterized the litigation thus far.

Assumption 1: Prorogation entails high policy

It is unsurprising that characterization of the case as involving high policy has featured prominently in the present litigation. It is a natural argument for government to make, the consequential contention being that the courts should not trespass on this political terrain. Asseveration is not however argumentation, nor does it constitute factual proof.

The reality is to the contrary. In the very great majority of instances, prorogation entails nothing akin to high policy, in the manner that this phrase normally connotes. It is merely a mechanism for ending one session of Parliament. There has to be some way in a political system to signal the end of a particular legislative session. There is no preordained way in which this should be done. There are multiple options available, depending on the country, the nature of its political system and its legal traditions.

In the UK, this is, for historical reasons, done through prorogation. Parliament’s website is instructive, stating that ‘in recent decades, when Parliament has met all the year round, the prorogation of one session has usually been followed by the opening of a new session of Parliament a few days later.’ The reasons for this are not hard to divine. The government has a self-interest in ensuring the continuity of its legislative programme and will not, therefore, consciously jeopardize this by allowing public bills to fail as a result of prorogation. It also has a self-interest in ensuring the continuity of its busy legislative agenda into the new session, which inclines towards short prorogation, so that it can be parliamentary business as normal thereafter.

Prorogation is, therefore, in most instances unproblematic, and not newsworthy. It is for this very reason that people do not march on the streets contending that prorogation is endangering democracy. There is no such danger, since it is merely the standard way of signalling the end of one parliamentary session, with no ulterior purpose.

There may be some question as to the precise date when it will occur, but this does not establish that prorogation systemically entails high policy. It does not. Nor does the fact that prorogation is, in a reductionist sense, political mean that it is a matter of high policy, or cannot be used for some improper purpose. That is a non-sequitur. There is nothing odd about a discretionary power that may be used for an improper purpose. Courts grapple with these issues in judicial review the whole time. The application of established principles of judicial review concerning propriety of purpose is not especially difficult in this instance.

Assumption 2: It is impossible for a court to intervene in relation to prorogation because there is no acceptable legal test that does not entail unwarranted intrusion on the political terrain

This second assumption is readily apparent in the cases concerning prorogation thus far. It is, with respect, misconceived. Courts do not write doctoral theses. They decide the cases that come before them. They decide cases one at a time. They must fashion a ratio that is fitting for the case that comes before the court. It is for the court to decide how broad or narrow that ratio should be. The assumption underlying the opposition to judicial review in the instant cases is that the court must be able to formulate a general principle concerning legal intervention in relation to prorogation that will cover all conceivable hypothetical instances where the issue might arise. There is no warrant for this. We do not demand this of courts in other instances. To the contrary, courts reason by analogy, normally and wisely beginning with relatively narrow propositions and moving outward therefrom insofar as this is warranted.

This approach is readily applicable in the instant case. A narrow ratio would be as follows: it is an abuse of the prerogative power of prorogation to use it intentionally to curtail the opportunity for parliamentary engagement, through legislation, debate or scrutiny, on an issue of major public importance, more especially where determination of the salient issue is subject to strict temporal limits.

This constitutes an improper use of the power of prorogation for two related reasons: the power is, by definition, being used for an objective other than the simple closure of a parliamentary session; and the use of the power in this manner entails infringement of the principles of parliamentary sovereignty for the reasons made clear in my earlier posting.

Counter-factual reasoning can be instructive. Consider then for those minded to oppose this hypothetical ratio, the nature of the arguments that might be advanced in this regard. Any such argument would, by definition, mean defending the proposition that it is constitutionally lawful and legally unchallengeable for the government to use the prerogative power in this manner.

If we accept such an argument then we recast the boundaries of Parliamentary sovereignty as traditionally conceived. Parliament remains omnipotent, in the sense that there are no bounds to its legislative authority, but the executive can determine when Parliament exercises that legislative authority. It can choose to prorogue Parliament whenever it so wishes, including in order to prevent Parliament exercising its voice, though legislation or otherwise, merely because the executive believes that what Parliament might do is undesirable. The executive’s decision in this respect is legally unchallengeable, irrespective of the ground on which the prorogation decision is based. If this represents the law then every text book, article and essay on constitutional law has missed this crucial qualification to the sovereignty of Parliament.

It would perforce be for the claimant to prove that the government had misused its power, but there is a very great deal of evidence available as a matter of public record attesting to the government’s willingness to resort to prorogation for this purpose, and attesting also to the fact that it was used for this purpose. The fact that the government attempted at the 11th hour to defend the use of prorogation on the ground that it was designed to facilitate introduction of the PM’s new legislative agenda makes no sense for the reasons identified in my previous blog. The argument could, in any event, be assessed in accord with standard tools of judicial review, designed to test the soundness of factual and evidentiary assumptions. The government’s claims in this respect do not warrant immunity from proper scrutiny. To countenance this would be an abnegation of judicial responsibility.

Assumption 3: Prorogation is unproblematic because Parliament has already exercised its legislative authority

The third assumption is that legal intervention is unwarranted because there are no adverse consequences from prorogation, given that Parliament has managed, in the time available, to enact legislation to limit the possibility of a no-deal Brexit in the form of the European Union (Withdrawal) (No 6) Bill 2019, which is awaiting royal assent at the time of writing. There are two flaws in this argument.

First, as Alexandra Sinclair and Joe Tomlinson explain, prorogation has very serious consequences for enactment of the primary legislation and statutory instruments required to render UK law fit for purpose by exit day. The idea that Parliament’s legislative function during prorogation is exhausted by passage of legislation to limit the possibility of a no deal Brexit does not, therefore, withstand examination.

Secondly, it is mistaken to think of sovereignty as only relevant to statutory outcomes. Parliament is the source of discursive debate on the floor of the House and in committees, as well as political accountability and scrutiny through Select Committees. To be clear, it is not that sovereign status attaches to a debate or resolution, it does not, but that is to miss the point. Parliament’s engagement in such activities is an essential feature of its sovereignty. It is through such debates/scrutiny, that it can determine what is in the best interests of the country, and whether that is best achieved through legislation or in some other way. Prorogation that is designed deliberately to take Parliament out of the game in order that the executive can pursue its desired ends, thereby precludes parliamentary voice, discourse and scrutiny for the period of the prorogation.

On 30th July 2019 the Women and Equalities Committee published the report of its inquiry into the Enforcement of the Equality Act. The Committee recommended important changes in the way that the 2010 Act is enforced, concluding that the reliance on individuals to bring claims when discrimination has occurred imposes too high a burden on those individuals and is not fit for purpose. Therefore, they argue, that while there must remain a right to challenge discrimination in the courts, ‘the system of enforcement should ensure that this is only rarely needed’. Instead, building on the work of Bob Hepple, Mary Coussey and Tufyal Choudhury, and Sandra Fredman, the Committee advocated a more proactive approach where ‘all who have powers to change the way in which employers, public bodies and service providers operate use those powers to eliminate discrimination and to advance equality’. The Committee focused on three main institutions that needed to be improved if this proactive approach is to be achieved: the Equality and Human Rights Commission (EHRC); regulators, inspectorates and ombudsmen (RIOs); and the government. This post discusses the roles envisaged by the Committee of the EHRC and RIOs and how the Committee believes these roles can be achieved. It will be argued that while the recommendations are important and achievable, in places they both overplay and underplay what can be achieved by these bodies in the timeframes set by the Committee, and there is a danger that if the recommendations were enacted, some of the actions could undermine rather than further a proactive approach to enforcement.

The Equality and Human Rights Commission

The Committee found that the EHRC tended to intervene in existing cases rather than initiate action on its own behalf. In particular, it criticised the Commission for rarely using its unique powers: having never issued a compliance notice; applying for seven injunctions but then not publicising this fact, only initiating one formal investigation and never assessing compliance with the public sector equality duty. Based on this, the Committee argued that the burden of enforcement has been borne by individuals, which was insufficient to tackle routine and system discrimination. Consequently, the Committee recommended that the EHRC engaged in more enforcement work, that it publicised this work, had clearer priorities, made RIOs a priority target for investigation and enforcement action, and established memorandums of understanding (MoU) with all relevant RIOs within the next twelve months.

Regulators, Inspectorates and Ombudsmen

In relation to RIOs, the Committee found ‘example after example’ of them failing to meet their duties under the Equality Act 2010. It ascribed an important enforcement role to such bodies as they ‘are far better placed than the Equality and Human Rights Commission could ever be to combat the kind of routine, systemic, discrimination matters where the legal requirements are clear and employers, service providers and public authorities are simply ignoring them because there is no realistic expectation of sanction’. The Committee envisaged RIOs assessing equal pay, direct discrimination, the failure to make reasonable adjustments, harassment and victimisation. The EHRC would then be able to focus on strategic enforcement and act in areas where its expertise and unique powers are most needed. On the basis of this, the Committee recommended that each Government Department be put under a legal duty to ensure that the enforcement bodies for which they are responsible are using their powers to secure compliance with the Equality Act 2010.

Moving to a Proactive Enforcement Approach?

The report of the Women and Equalities Committee has many strengths that will encourage a move towards a more proactive enforcement approach. For example, the important role of RIOs has been clearly recognised. Additionally, the Committee has recognised the need for the EHRC to shift its role (as I have argued previously the Commission’s focus on intervening in legal cases has not been particularly successful) and focus more on its inquiry, investigation and own action powers. Crucially, the recommendations are not resource intensive focusing on reorienting how bodies (i.e. the EHRC and RIOs) currently behave and so are realistic and achievable. However, two significant criticisms can be made of the recommendations.

The report underplays the role of regulators, inspectorates and ombudsmen

The Committee envisages that RIOs will tackle routine and systemic discrimination. However, routine and systemic are not necessarily the same. Routine discrimination is something that happens repeatedly and as a matter of course and is likely to be fairly overt and thus fairly easy to address. In contrast, systemic discrimination is, by its very nature, embedded in the system, it is complex and very difficult to overcome. I agree with the Committee that RIOs can address both, however, the report focuses on routine discrimination (e.g. direct discrimination) and less on addressing systemic discrimination (e.g. the public sector equality duty), which is presumed to be the task for the EHRC (i.e. an area where its expertise and unique powers are most needed). Yet, it could be argued that in terms of systemic discrimination, RIOs are often better placed to act than the EHRC. For example, men are significantly less likely to access psychological therapy to treat mental health issues compared to women (33.9% cf 65.8%). This is clearly a systemic issue, there is no clear person or body to blame and it is a national rather than local problem. For such systemic issues, both national (e.g. producing of strategies and recording of statistics) and local solutions are needed. While the EHRC may be involved in developing national solutions, local health professionals know their patients best and should be involved in local solutions. The Commission cannot be present in every healthcare setting in Britain, but the relevant regulator and inspectorate (e.g. in England. the Care Quality Commission) can. The CQC, for example, can support local healthcare settings in complying with the public sector equality duty by sharing best practice, providing suggestions and incentivising (through ratings) innovative local approaches to addressing systemic discrimination. Yet, there is a danger that by placing a legal duty on Government Departments to ensure RIOs use their powers to ensure compliance with equality law, while at the same time requiring the EHRC to make RIOs, a priority target for investigation and enforcement action that this will incentivise a quick-fix tick-box approach by RIOs to enforcement. This prioritises what can be easily measured (i.e. addressing routine discrimination) over the more complex (i.e. addressing systemic discrimination).

The report overplays the role of the Equality and Human Rights Commission

The Committee recommends that the Equality and Human Rights Commission concludes a MoU with every regulator, inspectorate and ombudsmen within 12 months and make them a priority target for investigation and enforcement action. Presumably, the assumption underlying this recommendation is that it is easy for RIOs to enforce equality law and they are purposefully choosing to ignore their obligations. However, while equality law might have been simplified it is still not simple and so it seems a little unrealistic to assume it can easily be grasped by non-specialists (e.g. teachers in Ofsted, health professionals in the CQC). In this context, RIOs need guidance and support from the EHRC, yet the Committee’s recommendations risk placing them in opposition, enforcement action being an initial act rather than a last resort. As outlined above, working independently to address equality in a short-time scale to avoid enforcement action is likely to lead to only very basic enforcement by RIOs, and does not encourage more complex, time-consuming action to address systemic inequalities.

Conclusion

Overall, the report of the Women and Equalities Committee is welcome, as a genuine attempt to move towards a more proactive enforcement model of equality law. However, in order to address systemic discrimination, a greater recognition needs to be given to the potential of regulators, inspectorates and ombudsmen. Additionally, there needs to be consideration of how this potential can be best realised, where instead of refusal to act, consideration is given to the lack of capabilities to act. In this light, the EHRC is best placed to support regulators, inspectorates and ombudsmen to make real and important changes to the way they work rather than bringing enforcement action against them.

The Rise of Constitutional Identity Review in Europe: A Critical Assessment

This two-day research conference will bring together legal scholars, practitioners and constitutional court judges to discuss the rise of constitutional identity review in Europe. This development, most visible in the aftermath of the 2008 Euro-crisis and of the rise of populism in Europe, has thus far not received systematic, cross-country attention. The conference seeks to remedy this by including panels exploring the theoretical roots of the concept and critically assessing doctrines of judicial interpretation invoking constitutional identity, whether in response to domestic or supranational forces.

The conference will bring together judges, practitioners and scholars based in the UK, Italy and elsewhere in Europe to debate questions such as: What, if any, is the added explanatory value of the concept of constitutional identity? Was the rise of constitutional identity review a doctrinal necessity in the face of supranational forces or a doctrinal misstep? Is constitutional identity review constitutional nationalism by another name? Does the simultaneous rise in unconstitutional constitutional amendment doctrines, whereby courts invalidate constitutional amendments on substantive grounds, necessitate constitutional identity review? How much is the rise of constitutional identity review about protecting democracy and how much about enhancing judicial power? Is constitutional identity review especially prone to abuse?

For more information and to register for the conference, please see HERE.

Prof David Feldman, Emeritus Rouse Ball Professor of English Law, Cambridge University and former international judge, Constitutional Court of Bosnia and Herzegovina

Sir Jeffrey Jowell QC KCMG, Blackstone Chambers, inaugural Director of the Bingham Centre for the Rule of Law, UK’s member of the Council of Europe’s Commission for Democracy through Law (“The Venice Commission”) (2000-2011) and Professor Emeritus of Public Law, UCL

The decision of the Boris Johnson government to prorogue Parliament with the sole motive of frustrating the latter’s attempts to outlaw a no-deal Brexit was described by some as a ‘coup’. Much debate has since ensued about whether this characterisation is accurate. Whether the government’s actions in relation to Parliament’s prorogation amount to a coup or not is the wrong, and somewhat anachronistic, question to ask. Whether or not a coup, I will argue that what this government has undeniably done (and what the Theresa May government did not do in its pursuit of Brexit) is to take the first few steps towards a very 21st century style autocracy. Whether the government continues down this road remains to be seen, but this move deserves very serious attention from anyone interested in the fate of British democracy.

As I argued in this review essay, 21st century autocrats share some key similarities in terms of their modus operandi. Unlike their 20th century counterparts, these leaders do not order tanks on the streets of the capital or the storming of the broadcasting tower. The key objective in this current day autocratic blueprint is to achieve what Nancy Bermeo calls ‘executive aggrandisement’. As I argue in my essay, what we are witnessing in many established democracies is “a crisis of executive accountability. There is a gradual erosion of all three forms of accountability-seeking mechanisms: (i) electoral or vertical accountability to the people, (ii) horizontal or institutional accountability to the political opposition, judiciary, and fourth branch institutions, and (iii) diagonal or discursive accountability to the academy, media, and civil society.” This pursuit of executive aggrandizement has the following common features:

First, authoritarianism in the 21st century is usually triggered by political–rather than military—leaders elected to office through free and fair elections, at least in the first instance of their taking office. Perhaps even more importantly, these democrats have primarily employed that lubricant of democracy—the political party—to corrode it instead. Powerful leaders have sought to undo the separation of the party and the state by packing unelected state institutions with party cadre. Latter day autocratic leaders tend to first root out all opposition within their own party, and then turn on the political opposition.

Second, unlike their twentieth-century counterparts, these autocratic democrats have usually not felt the need to invoke extraordinary emergency powers that most democratic constitutions grant the executive. The crisis of executive accountability has been achieved under rules governing normal political circumstances. At least in its initial phase, executive aggrandizement appears to have been furthered by reliance on constitutional change achieved by incremental means rather than through a comprehensive formal constitutional reform package. These measures are not necessarily illegal, but they are constitutionally shameless, in that they breach generally accepted conventional norms of civility and comity in political life. Because incrementalism admits to degrees, it is hard to say when some red line has been crossed. Note, however, that incrementalism only implies the movement toward a goal through multiple small steps. It does not mean gradualism.

Third, following from the two previous features, these democratic autocrats have sought to legitimize their assault on accountability mechanisms by attacking their institutional enforcers as corrupt, partisan, ineffective, liberal, elitist, treasonous, and even anti-democratic limbs of what they term the ‘establishment’. Often, unpopular ethnocultural minorities and immigrants have been targeted to mobilize the ‘real’ people of the demos. They pay a normative lip-service to democracy even as they undermine democratic institutions. When both sides claim to be defending democracy, moral clarity is the casualty. The consequent normative muddle makes it difficult to call out a breach, making democratic mobilization to defend executive accountability mechanisms very hard. Thus, the assault on the mechanisms of executive accountability has been defended by strategic (and disingenuous) deployment of the democratic norm itself.

Finally, it seems that the end goal of these leaders—in Albert’s and Pal’s words—is ‘the hollowing out of democracy from within, rather than attempts to replace it outright’. The attempt is not to tinker with a few aspects of executive accountability mechanisms here and there. The incremental assaults are typically systemic, launched simultaneously on multiple fronts. Executive aggrandizement is therefore geared toward a systemic weakening of democracy by ensuring ruling party capture of accountability mechanisms, while retaining a bare minimum procedural commitment to electoral democracy that can continue to legitimize the regime.

The systemic use of multiple micro-assaults makes it especially challenging for the judiciary to act as an effective check on this mode of executive aggrandizement. Judges are good at checking isolated, particularly egregious, acts. They are less effective at preventing systemic challenges composed of numerous micro-assaults, each of which may have a precedent (within the jurisdiction or in other liberal democracies) and does not look particularly damaging when examined in isolation. The threat is posed by the accumulation of many such simultaneous assaults—something that the political opposition and fourth-branch institutions are often better at calling out than the judiciary.

These features suggest that 21st century autocrats kill democracy by a thousand cuts (‘lingchi’)—incrementally to avoid the noise and mess of big guns—but systemically. These features underscore both the strength as well as the weakness of democracy. Strength, because the near-universal acceptance of the democratic norm makes it very costly to be seen to be breaching it too blatantly—democracy alone is powerful enough to slay democracy. Weakness, because they expose the fragility and vulnerability of democratic institutions, which can be weakened or captured so easily. One way to make sense of this apparent contradiction is to view the crisis of executive accountability as entailing a claim by the current political executive to be the sole repository of democracy, to the exclusion or subservience of future executives and all other state institutions—whether elected, selected, or appointed. This winner-takes-all claim to the democratic mandate, and therefore to democratic legitimacy, is central to their ability to undermine democracy using the rhetoric of democracy itself.

It is in this comparative context that we should understand Prime Minister Johnson’s actions. His long-term political objectives remain mysterious, but some operational similarities with the aforementioned mechanism can be noted. Johnson satisfies the first feature: he acquired political office legitimately under existing norms. The prorogation of Parliament, at least partially motivated to frustrate its attempts to prevent a no-deal Brexit, is a classic anti-Opposition move. His decision to expel 21 MPs who rebelled against his policy is also similar to other autocratic leaders who have shown zero tolerance to opposition within their parties. The government’s anticipated moves to delay sending a bill that prohibits a no deal Brexit to the Queen to effectively frustrate its injunctions and to secure an electoral timetable that best suits its political fortunes will, if they happen, follow the script.

Second, legal or not, these moves are constitutionally shameless. They are incremental micro-assaults on the constitution, which makes judicial intervention very difficult. They may have precedents, but these precedents were usually of a smaller scale (in terms of the number of MPs expelled, the period of prorogation, the period for which a Bill was held up etc), and did not happen in such quick succession. A robust constitution can withstand occasional micro-assaults, just as robust individuals can cope with occasional casual racism. They become a problem when they become all too frequent.

Third, Johnson’s rhetoric is decidedly democratic. There is the characteristic appeal to the [real] British people, the invocation of the narrowly-won referendum, a refusal to read any change in popular opinion that the general elections after the referendum might have evidenced, a political past littered with the endorsement of lies and xenophobic ideas. Most critically, there is a presentation of himself as the sole representative of popular will, and of every opponent—even elected ones—as seeking to frustrate popular will. These are all very familiar tools to the 21st century autocrat.

The only thing that is not clearly established in Johnson’s case—because he simply hasn’t been the premier for long enough—is whether these moves pertain to a single policy issue [Brexit], or represent a more systemic modus operandi. If Johnson is using these measures simply to win on this single policy issue, then Nick Barber’s characterisation of the events in Mark Tushnet’s terms as ‘constitutional hardball’ will be correct. If they turn out to be a systemic feature of how Prime Minister Johnson functions—especially if he returns to power with a solid majority in the next elections—hardball will fail to capture what is going on. Then, we would be in executive aggrandizement territory.

Only time will tell, but there are reasons to be pessimistic. Constitutional shamelessness (or, hardball, if you may) incurs a political cost, and normal political actors are willing to pay it only for big ticket policy issues (like the Parliament Act 1911 or the appointment of a US Supreme Court judge). Constitutionally shameless actors, on the other hand, either don’t care about this cost, or turn it into political virtue by fashioning themselves as ‘draining the swamp’. Temperamentally, Johnson appears to not care about this cost, and even profits from it. If he returns with a solid majority, I would expect many more micro-assaults on the British constitution.

But this is not just about Johnson—even a different premier might be tempted. Brexit is but one of many existential questions facing the British constitution [Scotland, Northern Ireland, immigration, the Human Rights Act, economic recession, security and surveillance, climate change, and judicial power to name a few]. With the stakes as high as they are, the United Kingdom is likely to see many more shameless Johnsons, especially when the political rewards of constitutional shamelessness outweigh its costs. Even heavily entrenched, judicially enforceable, written constitutions have struggled to survive incremental onslaughts from a committed autocratic-democrat. The British constitution, with its heavy reliance on soft norms and conventions, is pretty much a sitting duck. The only thing that has held it together is a chivalrous commitment to protect its honour—honour codes cannot be sustained when dishonourable conduct becomes sufficiently profitable. I have characterised the incremental techniques used against other constitutions as death by a thousand cuts. Far fewer cuts will suffice to eviscerate the squishier British constitution.

Tarunabh Khaitan is the Professor of Public Law and Legal Theory at Oxford University and a Future Fellow at Melbourne Law School. He is also the General Editor of the Indian Law Review.

Whether or not it is ultimately found to be unlawful, the Prime Minister’s decision to advise the Queen to prorogue Parliament has shed a spotlight on what Robert Blackburn has described in his illuminating article on the monarch’s personal prerogatives as: “a little corner of the constitution that is little understood and is routinely misunderstood”, (‘Monarchy and the personal prerogatives’ (2004] PL, 546) In the absence of any clear consensus amongst UK constitutional scholars on this issue, I would suggest that the postcolonial experience of the Commonwealth Caribbean with regard to the head of state’s personal prerogatives, prorogation, and constitutional review more generally, can offer a helpful comparative constitutional perspective.

Prorogation in the Commonwealth Caribbean

The 12 countries that make up the Commonwealth Caribbean (Antigua, the Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, St Kitts, St Lucia, St Vincent and Trinidad) attained their independence from the UK in a period spanning 1962 to 1983. Their independence constitutions, which were based on the Westminster model, were, in Lord Diplock’s words, “negotiated as well as drafted by person nurtured in the tradition of that branch of the common law of England that is concerned with public law.” (Hinds v R [1977] AC 177). As well as replicating the prerogative powers exercised by the Crown in the UK, they each seek to codify the conventions that surround the exercise of those powers. They may thus be said to represent the best understanding, as at the time of their drafting, of the nature of these conventions and how they were intended to operate in practice. For the purposes of our present enquiry, it is important to note that each constitution codifies the power of the head of state to prorogue Parliament. For those countries that remain constitutional monarchies, the head of state is the Crown acting through her representative, the Governor General. For Dominica, which embarked upon independence as a republic, and Trinidad and Tobago which became a republic in 1976, it is the President. Guyana represents something of an anomaly because, in 1980, it adopted a hybrid parliamentary/ presidential model of government and so will not be considered further here.

In the exercise of certain personal prerogatives Commonwealth Caribbean constitutions vary as to the extent of the head of state’s discretion. For example, some constitutions (see, for example, s65(1) Constitution of Barbados) empower the head of state to decide whom to appoint as Prime Minister in the case of a hung parliament: others empower the head of state to decide whether it is the country’s best interests to accede to a Prime Minister’s advice to dissolve parliament (see, for example, s84(40(a) Constitution of Belize). However, in no case do they afford any discretion to the head of state when exercising their power of prorogation. In exercising this power, the head of state has no choice but to act in accordance with the advice of the Prime Minister (see, for example, 34(1) Belize). The question of whether they have so acted is, however, precluded from judicial review by the inclusion of an ouster clause which, typically, provides that: ‘Where by this Constitution the Governor-General [or President as the case may be] is required to perform any function in accordance with the advice of, or after consultation with, any person or authority, the question whether the Governor-General [or President] has so exercised that function shall not be enquired into by any court of law’ (see, for example, s34(4) Belize and s118(3) Dominica).

The power to prorogue parliament under each of the independence constitutions is time limited. In the majority of cases, the maximum time for which parliament can be prorogued is six months (see, for example, s59(1) Constitution of Antigua. However, in the case of the Bahamas (s65(2)) and St Lucia (s54(1)) it is 12 months.

Aside from normal routine prorogations, Commonwealth Caribbean Prime Ministers have only prorogued parliament for politically motivated reasons on three occasions since independence. Two of these occurred in Grenada. The first occasion was in August 1989 when the Governor General, Sir Paul Scoon, prorogued parliament upon the advice of the Prime Minister, Herbert Blaize, who faced the threat of a vote of no confidence, which he was very likely to lose. The exercise of the power of prorogation in this instance is remarkable on two counts. Firstly, because the idea of proroguing parliament to avoid a potential loss on a vote of no confidence was actually suggested to the Prime Minister by the Governor General; and secondly, because the Governor General regarded the prorogation as done ‘with constitutional rectitude,’ as he later recounted in his memoir (Survival for Service (Macmillan:2003)). The second occasion was in September 2012 when the Prime Minister, Tilman Thomas, who, following the precedent set by his predecessor, Herbert Blaize, when faced with losing a vote of no confidence, simply requested the Governor General to prorogue Parliament. The political consequences of the prorogation in Herbert Blaize’s case are difficult to assess because he did not live to fight the ensuing elections when parliament was finally dissolved, but in Tilman Thomas’s case it is clear that the decision to prorogue was politically catastrophic as his party failed to win a single seat in the ensuing elections.

The third instance of the prorogation of parliament for politically motivated reasons was in Trinidad and Tobago, in April 2002, when the Prime Minister, Patrick Manning, advised the President, Arthur Robinson, to prorogue. On this occasion, the prorogation was prompted by the failure of the governing and opposition parties, who had won an equal number of seats in the December 2001 general election, to agree on the election of a Speaker, making it impossible for parliament to conduct any business. In dismissing a legal challenge to the Prime Minister’s refusal to hold a general election whilst remaining in power following the prorogation, the Judicial Committee of the Privy Council (JCPC) in Bobb v Manning [2006] UKPC 22, noted that there were a number of wholly proper reasons why the Prime Minister may have preferred to prorogue rather than dissolve parliament. For example, the Prime Minister could reasonably have hoped that further negotiations with the opposition party might lead to a compromise, such as agreement on an independent non-member Speaker, or that a member of the opposition party might defect. Alternatively, the Prime Minister could have feared that a second election might yield the same result or that there were potential public disadvantages in holding another election so soon.

Conclusion

The independence constitutions of the Commonwealth Caribbean make it clear that, as the convention was understood by those responsible for negotiating and drafting these constitutions, there could be no question of a head of state being able to refuse a Prime Minister’s advice to prorogue parliament. The nature of conventions operating within an unwritten constitution like the UK’s, is, of course, that they can evolve over time, but there is no good reason to believe that the nature of this particular convention has changed since then.

It is also worth noting that while these independence constitutions expressly preclude courts from inquiring as to whether the head of state acted in accordance with the Prime Minister’s advice, they do not, as the JCPC observed in Lewis v AG Jamaica [2000] UKPC 35, preclude the courts from reviewing the constitutionality of that advice. In the context of the prorogation of parliament this means that, if a Caribbean Prime Minister were to advise the head of state to prorogue parliament for a longer period of time than is permitted by the constitution, it would be perfectly proper for the courts to review the legality of that advice. Of course, in the context of the UK’s unwritten constitution, the question of the legality of the Prime Minister’s advice to prorogue does not admit of so clear-cut an answer, but the absence of a written constitution should not be a bar to challenging the legality of the Prime Minister’s advice to the Queen. Once again, a Caribbean precedent may be helpful. In the Hinds case cited above, the JCPC was prepared to strike down legislation – the Gun Court Act – not on the ground that it offended any written provision in the Constitution, but because it offended an implied principle of any system of government based on the Westminster model, namely the separation of powers. An argument based on implied principle – whether the separation of powers or the accountability of the executive to parliament – should equally be available to those challenging the legality of the Prime Minister’s advice to the Queen.

The judgment of the JCPC in Bobb v Manning, however, indicates the scale of the challenge they will meet in asking the courts to rule that the Prime Minister’s advice to prorogue was unlawful. As the judgment makes clear, the courts will be particularly receptive to political arguments justifying the prorogation of parliament. Whether or not the political justifications that the Prime Minister has so far advanced for proroguing Parliament are credible and how closely the Supreme Court will wish to scrutinise them are, of course, quite different matters.

Twenty-one eminent constitutional lawyers expressed this view in a letter to the Times (3 4 19): ‘Any attempt to advise refusal of Royal Assent to a Bill passed by Parliament would stand constitutional principle on its head. It would presume a governmental power to override Parliament, yet it is in Parliament, not the Executive, that sovereignty resides’.

But it is the eminent-21 who stand constitutional principle on its head. The true principle is: it is in Parliament (not the Executive, and not the Legislature) that sovereignty resides.

The name Parliament, or parliamentum, came (from the Old French: parlement, parler) into use in England in the 14th century (the Modus Tenendi Parliamentum, probably 1321), but by the 15th century it had come to mean a legislature (OED 3rd edition, 2005); and, indeed, that’s what it was. The movement from an absolute monarch to a legislative Parliament is the first of the two large movements in the history of British Parliamentary sovereignty. The second was the movement from the Interregnum to the present, when the executive power of the monarch was, with many intermediate steps, completely transferred to Parliament. In this second movement, the legislative Parliament completed Parliament’s sovereign power. But that this was achieved by a legislature does not mean that the sovereignty achieved was legislative (a bat hits a ball, therefore the ball is a bat!). The final sovereignty was one of legislative and executive power. Parliament was by the second movement now the sovereign in right of both.

It is widely accepted that the legislature of Parliament is so sovereign that it can enact any law it likes – even that all blue-eyed babies are to be executed (Dicey). This is questionable, but let’s accept that it’s correct. It doesn’t follow that the constitutional relation between the legislative and executive power is to be anything that the legislative power likes (for example, that a Cooper-Letwin legislature be allowed to take over the executive power). The sovereignty lies in the relation of the powers, not in just one of them. It is correct to think that the Parliament is the absolute sovereign of the British Constitution, but the Parliament, historically, and in its modern practice is both powers, not just one of them.

And if it were just one of them, that one would have to be the executive. Of the three traditional powers, the legislature is the least necessary, in fact the only one that is dispensable. Executive power plus judicial power (the unwritten common law), but minus legislative power, would work quite well (in a pared-down free market economy). Legislative plus executive, minus judicial power, would be difficult to conceive and extremely unwise as an exercise in freedom. But legislative plus judicial, minus executive power, would not work at all. Executive power is the one indispensable power of the British sovereignty.

Of course, the legislature does have law-making power in relation to the Executive; it can state the conditions of its liability to suit by citizens. But this liability is as much an executive concern as legislative. Liability to suit for malfeasance is a positive desideratum for any lawful executive power. In no sense is such a law a sovereign imposition by the legislature upon the executive power; in the modern Parliament it is an example of the two powers co-operating within the lawful sovereignty.

The Parliament is fundamentally what it is in its original meaning: a group of people called together (in modern times by election) to discuss, decide, execute and oversee the governance of the country in both its legislative and executive functions. It is not just a debating chamber: Cromwell at Naseby was Parliament at Naseby.

In R (Miller) v Secretary of State for Exiting the EU, [2017] UKSC 5, the majority judges said (at 82): ‘we cannot accept that a major change to UK constitutional arrangements can be achieved by ministers alone; it must be effected in the only way that the UK constitution recognises, namely by Parliamentary legislation’. Here the judges are saying that only the legislative power is the ultimate sovereign. In this they were, I think, misled by HLA Hart’s idea of the rule of recognition (‘the fundamental rule by reference to which all other rules are validated’: Miller 60). The rule posits the recognition only of rules or laws, or rules of law, and of changes in them, and so it (a) excludes the recognition of the executive power, and (b) by that fact also excludes the possibility of a sovereign’s duty to the people.

Juridically speaking, duty is a logical function of action, and constitutional action is the province of the executive power. It acts. The legislative power doesn’t – an Act is not an act (except figuratively). Obviously, members of Parliament act when they vote on legislation, but the legislative power itself is not an actor. And how could you have a sovereign that doesn’t act? How could you have a sovereign who because it doesn’t act, doesn’t have a duty to the people?

Salus populi suprema lex, is a matter of the executive power for the very obvious reason that security in the 21st century is essentially covert, and beyond the capacity of a necessarily overt legislature. This is the most fundamental duty of a sovereign/state to its people, more fundamental than the (legislative) rule of recognition.

The constitutional base of the executive power was, and still is, Parliament (it would be a constitutional solecism to say Whitehall). Even now, in current practice, the substance of much of Parliament’s work is executive governance. The Government is formed in the Parliament, not Whitehall, and it has the following executive characteristics:

Question time in Parliament is plainly an executive, rather than legislative, process.

Ministers themselves are more executive than legislative; the prime responsibility of a health minister, for example, is to take overall control of the running of the health – the Minister’s devising legislation is incidental to this task.

The making and unmaking of governments by Parliament is an exercise of executive, not legislative power. Parliament could do this legislatively (when someone puts up their hand for PM it might pass a law appointing them, which can, whenever they like, be repealed. But they don’t; they do it with a regime of confidence, supported by motion rather than legislation. The idea that a vote of confidence in the executive is a vote by the legislative power is simply nonsense.

Budgets achieved by the Parliament are not legislative budgets, they are executive budgets (including, as it happens a relatively small amount for legislative expenses). It is a misreading of history to suggest that the fact that the primarily legislative Parliament of the 17th century successfully broke the Monarch’s executive power to raise money, established a superiority of the modern legislative power over the executive.

There is a certain awkwardness attaching to the idea of Parliamentary executive action; but that is because the very looseness of the Supreme Court’s language is common currency. We can see this in the Parliament Acts 1911 and 1949, which are misnamed. Their correct title, as anyone will see who examines their substance, is: the Parliamentary Legislation Acts 1911 and 1949. With this misleading title becoming pervasive in constitutional thought, the words ‘legislation’ and ‘Parliament’ developed a semantic proximity; but it should go without saying that we expect our judges to prefer constitutional and historical substance to nomenclature.

A distinctive aspect of the Queen’s constitutional duty is for her to act only on advice. In that way she avoids compromising her constitutional status by the possession of a personal opinion. There is no sense ever in which the legislature advises the Queen. The advice of the executive is the foundation of her constitutional status.

Will the Queen (can she) follow the Prime Ministerial advice and refuse assent to the Brexit repeal statute? It is said (for example, by Professor Mark Elliott, one of the e-21) that the principle of Parliamentary democracy (in its legislative mode) should prevail over her prerogative power to act on the advice of her Government. But this is wrong on two grounds. First, it is a democratic Government (as democratic as the legislature) that is offering the advice. And second, as has been shown time and time again in post-colonial states, democracy fails without an historical foundation of trust. In the United Kingdom that trust resides substantially in the constitutional Queen herself (as Bagehot said in many ways). Elliott’s argument, pitting democracy against that trust, begs the question of a real and ongoing democracy.

Suppose the Queen does refuse assent to a Brexit repeal or extension. Pre-2011, her clear course would have been to require an election – shifting the issue to the people. She would accept the Prime Minister’s advice and refuse assent to the bill on condition that he takes the issue to an election. Simple? No. Under the Fixed-term Parliaments Act 2011 that solution is not available; neither she nor the Prime Minister has the power to bring an election about. So she must act, and this can only be on advice.

She is a constitutional monarch with no opinion of her own on Brexit, and if advised by her Prime Minister to refuse assent, she must do so. She also has advice to the same effect from the people. It was rather legalistic for the Supreme Court in Miller to refuse to regard the European Union Referendum Act 2015 as, given its result, authorising the Article 50 notice; but as advice from her people to their fiduciary Queen, the referendum was unambiguous. It didn’t change the law in any legislative sense; but it did give a definite content to the sovereign Parliament’s duty to its people – and in particular to the acting part of the sovereignty, the executive power.

A Prime Minister advising the Queen to refuse assent to a bill is acting in a way appropriate to his office in the sovereign Parliament – acting legitimately no less than the legislators of the two Houses are doing. Such a thing is rare, but proper. Only the fallacious idea that the legislature is itself the Parliament, gives pause here.

Will the Supreme Court stick with the demotion of the executive power evidenced by Miller and enjoin the Prime Minister from giving advice against assenting to the bill? No court, we may take it, would enjoin the Queen as to her assent to a bill. But enjoining the Prime Minister would have the same effect. This is because if you take away the Prime Ministerial power of advice, you take away the power of the Queen to act as a constitutional monarch: she has no interest or view of her own, and therefore can only act on advice. What would the enjoining of the Prime Minister against this achieve? It would turn the real Constitution on its head.

Far from the Prime Minister’s executive advice overriding Parliament (as the e-21 put it), it is an essential part of its constitution. Parliament, the sovereign, in this final working-out of the Brexit issue is both legislature and executive, consisting of sovereign parties who will play the issue out according to its complexity, including its timing, which might be short, and all its judgements and misjudgements (particularly of time), and the rules of play. It might be as I’ve imagined it with the two houses passing a bill and the Prime Minister advising against the Queen’s assent (which advice she accepts), or it might be the Commons passing a legitimate motion of no confidence in the Prime Minister’s Government and through an election installing a new Prime Minister who advises the end of Brexit (which she accepts). Either way, the whole Parliament will have spoken and determined the issue. To cut that process short, as by cancelling the Prime Minister’s executive advice, would be to fracture Parliament, not vindicate it.

The decision to prorogue Parliament does not only have implications for whether Parliament can prevent a no deal Brexit, it also has important consequences for the making of primary and secondary legislation prior to exit day. We are particularly concerned with statutory instruments (SIs). There is already a strained position vis-à-vis the lack of scrutiny of secondary legislation, to such an extent that Parliament scrutiny is effectively incapacitated. It is clear that prorogation will exacerbate this incapacitation. In this post, we explain why this is the case.

Primary Legislation

When Parliament is prorogued all Bills fall unless expressly carried over to the next session. This means they need to start the legislative process again in a new session, if they are to be revived. At present, there are five Brexit Bills progressing through Parliament. Two of these, the Trade Bill and the Financial Services Bill are ineligible to be carried over to the next Parliamentary session because they have already progressed too far. The Agriculture Bill, the Fisheries Bill, and the Immigration and Social Security Coordination Bill can in principle be carried over to the next session. However, it is unlikely they will be. In order to carry over a Bill, a Minister must table a motion that proceedings on a Bill were not completed before the end of the session and shall be resumed in the next session. Each Bill requires a separate carry over motion.

When Parliament is prorogued the Government cannot lay statutory instruments in ‘draft’ but it can lay them as ‘made’ statutory instruments (i.e. an instrument that has already been signed off by the relevant minister and can come into effect before it is considered by Parliament). If the Government wishes to lay Brexit SIs during prorogation it can do so by triggering the urgent case procedure under the EU (Withdrawal) Act 2018 and turning proposed draft negative and affirmative statutory instruments into made affirmative and negative statutory instruments. Affirmative statutory instruments need to be debated in each house of Parliament whereas negative statutory instruments do not need to be debated at all.

The EU (Withdrawal) Act had a ‘sifting’ process built into it. This meant that the European Statutory Instruments Committee had to examine every proposed negative statutory instrument to decide if it should actually be upgraded and therefore debated in both houses. The urgent case procedure allows the Government to bypass this sifting process, intended as a safeguard, to stop the Government avoiding debates on important statutory instruments by laying them using the negative resolution procedure.

Made affirmative statutory instruments will have legal effect immediately but only remain in effect if approved by both Houses within 28 sitting days. The result is that the Government could decide to use the urgent case procedure to lay made affirmatives in October to ensure that they are all in force by exit day. These would still need to be debated within 28 days but, if laid in October, they would not have to be debated prior to exit day. After exit day, it is quite likely that MPs would feel pressure to not vote them down—the debate would occur once they are operative, with individuals, companies, and public authorities relying on them.

Typically, when MPs are unhappy with a negative statutory instrument they can pray against it, which involves tabling a motion stating that the statutory instrument should not become law. Prayer motions cannot be laid while Parliament is prorogued, further disabling scrutiny.

The overall picture is therefore not a bright one. Parliament already had limited scrutiny capacity as regards Brexit statutory instruments and prorogation effectively removes what little was in place. It gives the Government a blank cheque to make laws via delegated legislation prior to exit day with the knowledge that there is very little Parliament can do about it.

Alexandra Sinclair is a Research Fellow at the Public Law Project. She is leading on the SIFT Project, which, in partnership with the Hansard Society, is tracking trends in Brexit SIs.

Dr Joe Tomlinson is Senior Lecturer in Public Law at the University of York and Research Director at the Public Law Project.

The Supreme Court of the United Kingdom (UKSC) is a much more visible and accessible institution than the Appellate Committee of the House of Lords. Through delivering extra-curial speeches on matters of general public importance beyond technical points of law and engagement in an array of ‘outreach initiatives’, individual Justices of the Court are becoming subjects of fascination themselves in addition to the interest around the Court as an institution.

It is against this background that Professor Andrew Burrows’ recent appointment to the Court alongside Lord Justices Hamblen and Leggatt is a significant development. This is the second time an individual has been appointed to the Court without having held ‘high judicial office’ within the meaning in section 60(2) of the Constitutional Reform Act 2005 (CRA). Including these recent appointments, there have been 19 direct appointments to the Court. Of these, 15 (c.79%) have been elevations of Lords and Lady Justices of the Court of Appeal of England and Wales. Minus Professor Burrows, the other three appointments were also of individuals with professional backgrounds as appellate judges, but outside England and Wales. Lords Reed and Hodge were appointed to the Court from their positions as Senators of the College of Justice in Scotland where they sat in civil appeals in the Court of Session and criminal appeals in the High Court of Justiciary. Lord Sumption was of course appointed from the Bar of England and Wales, but he too had the experience of being an appellate judge having served on the Courts of Appeal of Jersey and Guernsey.

Therefore, the appointment of a candidate without the professional background of being an appellate judge, such as that of Professor Burrows, is exceptional. In this post, I speculate on why it has taken so long to appoint a candidate who has not held ‘high judicial office’ despite the breadth of the criteria governing eligibility for appointment, and the longstanding commitments to have a larger and diverse pool of eligible candidates.

Who Gets Appointed to the Top Court?

Section 25 of the CRA sets out the qualifications for appointment to the UKSC. Professor Burrows presumably satisfied the opaque ‘judicial-appointment eligibility condition’ in section 25(1)(b) of the CRA. This criterion captures candidates who have qualified as solicitors or barristers in England and Wales, for at least 15 years, and thereafter ‘are gaining experience in law’ in the post-qualification period. Gaining experience in law is defined elsewhere in the Tribunals, Courts and Enforcement Act 2007 as ‘a period […] during which the person is engaged in law-related activities.’ Among the eight things listed as examples of ‘law-related activities’ in the 2007 Act is ‘teaching or researching law.’ There is a further ‘catch-all’ provision which includes ‘any activity that, in the relevant decision-maker’s opinion, is of a broadly similar nature to an activity’ in the foregoing list.

Thus, the judicial eligibility condition for appointment to the UKSC is to a degree permissive and deliberately calibrated so to create a larger pool of eligible candidates beyond the relatively smaller grouping of judges who have held high judicial office. This is why the information pack published by the Court in advance of these recent appointments emphasised that:

Applicants are sought from the widest range of candidates eligible to apply, including those who are not currently full-time judges and particularly those who will increase the diversity of the Court.

Beyond the diversity of professional background, the lack of demographic diversity among the Justices is still a salient issue. The appointment of Lord Reed as a successor to Lady Hale as President of the Court and the appointment of three men to fill this and the two vacancies created by the upcoming retirements of Lords Carnwath and Wilson will reduce the number of women Justices from three to just two. As the Court has already confirmed, the selection exercise to appoint Lord Reed’s successor as Deputy President ‘will be an internal competition’ since the appointments of Lord Justices Hamblen and Leggatt and Professor Burrows mean there will not be a vacant post among the ‘full-time equivalent’ Justices until Lady Arden retires in 2022. I offer three reasons why it has taken nearly ten years for a candidate who has not held ‘high judicial office’ to be appointed to the Court.

A ‘Brave’ Appointment

Firstly, unlike the system of appointment to the Appellate Committee of the House of Lords, the current system relies on eligible persons making applications in the first place. As noted in a review of these procedures, a ‘non-statutory’ part of the selection process requires eligible candidates to submit applications. It is possible that the introduction of an application-based system of selection for the higher judiciary generally removed the flexibility which was inherent in the old ‘tap on the shoulder’ system of selection and appointment led by the Lord Chancellor’s Department. Reflecting on her own appointment to high judicial office, Lady Hale has observed that:

[The Lord Chancellor] did also have the flexibility to be a little bit brave. In 1994 for example, he was extremely brave, he appointed me to the High Court and I was an academic, not a practitioner, and he appointed the first solicitor to be a High Court Judge. So, there was a little bit of flexibility there […]

In contrast, selection commissions convened for appointments to the UKSC select applicants to be appointed to specific vacancies. Thus, the actual pool of candidates is limited to persons who apply in each recruitment exercise. The ‘fishing expedition’ which was afforded to the Lord Chancellor’s Department to select what Lady Hale further calls ‘an off the wall candidate’ is no longer available.

Secondly, the requirement that candidates be called to the bar or qualify as solicitors, for at least 15 years, is arguably excluding distinguished academics from the eligibility pool altogether. This element of the ‘judicial-appointment eligibility condition’ does not actually require that applicants practise law, it only stipulates that they are called to the Bar or qualify as solicitors. The requirement is an artefact from a time when many, if not most academics teaching and researching law would have routinely qualified as solicitors or barristers before joining the academy. However, as readers of this blog will know, for some time, the normal or even required path to a legal academic career has been through a doctoral qualification rather than a qualification to practise. There is now a disjuncture between this element of the ‘judicial-appointment eligibility condition’ and the changed relationship between the legal professions, the academy and the bench. Soon, it will be very difficult to find distinguished academics such as Professor Burrows who readily satisfy this element of the condition. Furthermore, the length of the post-qualification period self-evidently limits the eligibility pool to older candidates. It is a remnant from a time when, as Kate Malleson describes, ‘the appointment of judges in their late 50s and 60s was accepted as a necessary and inevitable consequence of a merit system in which those in that age group make inherently better judicial candidates.’ If the intention now is to have a larger and more diverse pool of eligible candidates for appointment to the UKSC, then the constitution of ‘the judicial eligibility condition’ needs to be rethought.

The third reason, which all the more makes Professor Burrows’ appointment ‘brave’ – in the sense invoked by Lady Hale – is to do with the established expectations of the professional background of judges on final courts of appeal in common law jurisdictions. In the common law context, senior judicial appointments are still perceived as ‘crowning achievements’ on a successful career at the Bar usually marked out by an elevation to either Queen’s Counsel or Senior Counsel depending on the jurisdiction. In the UK context, a seat on the final court of appeal has usually been preceded by a QC’s appointment to the High Court and thereafter, the Court of Appeal (or their equivalents in the Scottish context). The territorial appellate courts, in particular, the Court of Appeal of England and Wales, remains what Rosemary Hunter designates the ‘de facto pool of potential candidates’ for appointment to the UKSC.

Conclusion

For now, the likelihood of future ‘brave’ appointments to the Court is dependent on eligible candidates who are not holders of ‘high judicial office’ applying in upcoming selection exercises. However, the success of these candidates is also reliant on a cultural shift in what we expect in the professional background of a Justice of the UKSC. In the long-term, the system of appointment itself, principally elements of the judicial eligibility condition, need to be reformed to reflect the contemporary relationship between the judiciary, the legal professions, and the academy.

Byron Karemba is a member of the executive committee of the Judicial Diversity Initiative. He is grateful to Kate Malleson for feedback on an earlier draft. However, all views and errors in this post are his alone.

While the prorogation of Parliament has generated political controversy, constitutional lawyers are asking whether the government acted legally in advising the Monarch. The legal challenges to the prorogation will face a number of hurdles. Even if the prerogative power is justiciable, there are difficult questions in identifying the specific legal issue. When writing about a potential challenge in June, Lord Pannick stated that one legal objection is that ‘the prime minister would be seeking to prorogue parliament for the purpose of avoiding parliamentary sovereignty on an issue of significant constitutional importance’. This post will explore a related line of argument, which focuses on proroguing Parliament as a means to avoid political accountability (so the argument does not rely on the language of sovereignty). The starting point in the line of argument is that the prorogation will to some degree hinder Parliament in whatever it wants to do in the period immediately prior to Britain exiting the EU. That goes beyond the potential to enact legislation or pass a motion of no confidence, and also includes the ordinary channels of political accountability and scrutiny of government.

Against this starting point, it can be countered that the government is not under a legal duty to maximise political scrutiny of its actions or make political opposition easier. However, the challenge to the advice to prorogue does not rest on such a vague or open-ended duty. Instead, the argument is that the government has acted contrary to existing expectations and past practice and done so at a time of political sensitivity. Parliament still has some days to act (so the government supporters say accountability is not foreclosed), but the measure means Parliament has less time than would normally be the case. While the government can still be held to account retrospectively in future months (so some accountability will be possible), by then it may be too late to reverse the government’s decisions (if there is an exit from the EU with no deal). The decision to act contrary to prior expectations and practice therefore warrants a high burden of justification from the government.

So far, an objection to the prorogation has been stated, but does this become a legal objection? Lord Sumption has argued not, stating that the objection is that the government’s action was ‘taken for questionable political motives’ and that is not sufficient to render the decision unlawful. According to that view, the remedy lies in the political sphere, not in the courts. However, Lord Sumption’s reference to ‘political motives’ does suggest a possible challenge on the basis that the government acted for political purposes. The political purposes doctrine has long been a ground for the judicial review of executive action. Over a century ago, Farewell LJ stated that political considerations are ‘pre-eminently extraneous’ (R v Board of Education (1910)). Exercising a statutory discretion simply to avoid political embarrassment will therefore fall foul of this principle (Padfield v Ministry of Agriculture, Fisheries and Food (1968)). Similarly, a decision not to stock certain newspapers in a public library simply because a local authority disagrees with the paper’s editorial stance would be unlawful (see R v London Borough of Ealing and Others, ex p Times Newspapers Ltd (1987)). If it can be established that the government is proroguing Parliament for political purposes, is the decision vulnerable to legal challenge on that basis?

The phrase ‘political purposes’ can be unhelpful. For a system of democratic accountability to work, politicians are expected to act for political purposes – most obviously in seeking to win votes by devising policies that will attract public approval. As Lord Bingham stated in Porter v Magill:

‘Elected politicians of course wish to act in a manner which will commend them and their party (when, as is now usual, they belong to one) to the electorate. Such an ambition is the life blood of democracy and a potent spur to responsible decision-taking and administration. Councillors do not act improperly or unlawfully if, exercising public powers for a public purpose for which such powers were conferred, they hope that such exercise will earn the gratitude and support of the electorate and thus strengthen their electoral position. The law would indeed part company with the realities of party politics if it were to hold otherwise.’

What makes a political purpose unlawful? Lord Bingham went on to elaborate:

‘a public power is not exercised lawfully if it is exercised not for a public purpose for which the power was conferred but in order to promote the electoral advantage of a political party.’

An obvious example would be a decision to give significant public funds to the governing political party (and no other party) for the simple purpose of conferring an advantage in a coming election. The doctrine applies more easily to statutory powers, which may be conferred for a specific purpose (or have such a purpose inferred). However, there is no reason why the doctrine could not apply to a clear politically motivated misuse of a prerogative power.

Sometimes the court explains the legal objection as applying to ‘purely political’ purposes. Such a phrase indicates that the measure in question is devoid of any merit aside from the political considerations and is thereby an abuse of power. As Lord Scott explained in Porter v Magill:

‘there is all the difference in the world between a policy adopted for naked political advantage but spuriously justified by reference to a purpose which, had it been the true purpose, would have been legitimate, and a policy adopted for a legitimate purpose and seen to carry with it significant political advantage.’

That, in turn, gets the court into difficult questions of whether the decision is ‘purely political’ or whether other grounds can support it. That is a key issue in the current controversy, as the government claims that the prorogation is not related to Brexit and nothing out of the ordinary.

It is possible to take the legal argument further, so that the question is not simply whether the decision is ‘purely political’ or not. Instead, the issue is also about how the political advantage is secured. A political purpose may be legitimate where it is implementing a policy in the belief that the public or MPs will approve of it. As stated, the system of representative democracy is based on such incentives. Accordingly, while a promise or decision to implement popular measures immediately prior to an election may be rhetorically characterised as a ‘bribe’, it is not automatically unlawful simply as it is calculated to secure political support. The legal objection arises where the advantage is secured by short circuiting the very process of political accountability that legitimates the exercise of public power. Along such lines, gerrymandering (and the analogous issue in Porter v Magill) is problematic because it taints the electoral process, through which such policies are to be publicly evaluated. Such a measure is not political in the sense of generating political approval, but instead seeks to undermine the channels through which political disapproval can be expressed. Under this line of argument, the key distinction is between the government playing its hand of cards well to secure a desired outcome, and the government attempting to stack the deck in its favour.

The line of argument could apply not just under the purposes doctrine and could be relied on in a rationality challenge (which may arise where it cannot be shown that the decision was primarily/purely political) to require a particularly strong justification from the public body. While many of the leading cases discuss the issue in relation to electoral advantage, there is no reason to limit the objection to party politics and elections. A decision taken simply to avoid political embarrassment may be unlawful, even when outside the context of an election. Similarly, the example of newspapers in a public library given earlier is not about an electoral advantage. More broadly, the decision in Evans v Attorney General can be understood as requiring a high level of justification before ministers can prevent the release of information that would otherwise be made available under a statute designed to promote political accountability.

An election is one component of a representative democracy, but there are other processes that are also crucially important. Government is expected to be accountable to Parliament. In this context, it is legally objectionable for government to use its powers to avoid or subvert the ordinary processes of scrutiny, checks and accountability because such processes happen to be politically inconvenient. The line of argument points to a key objection to the prorogation, that it is a political measure designed to curb the opportunities for accountability during a sensitive period in which an irreversible decision of political and constitutional importance may be made. For that reason, the argument runs that the matter cannot simply be left to the ordinary political channels to express opposition to the measure, as those ordinary channels are being closed down for a temporary (yet crucial) period.

Whatever is decided on the prorogation, it may not be decisive in relation to Brexit. Even if Parliament has extra days to scrutinise government, it is not clear what exactly it would do and whether opponents to the government’s policy would be out-manoeuvred. However, the legal challenge will raise an important set of constitutional issues, with possible implications for the way a government can manage the channels of political accountability.

With thanks to Jeff King and Mark Elliott for comments on an earlier draft.

Jacob Rowbottom is a Professor of Law at the University of Oxford and author of Media Law.

It may be that there is no such thing as a date of 31 October 2019 for a no-deal UK withdrawal from the EU. On 9 April 2019, according to Le Monde, Michel Barnier, chief negotiator for the European Council in the withdrawal negotiations with the UK, said: ‘The EU will never take a decision on a ‘no deal’. That will be a choice for the British.’

On 10 April, the European Council adopted a very obscure decision. ‘In response [to a British request], the European Council agrees to an extension to allow for the ratification of the Withdrawal Agreement. Such an extension should last only as long as necessary to allow for the ratification of the Withdrawal Agreement and, in any event, no longer than 31 October 2019. If the Withdrawal Agreement is ratified by both parties before this date, the withdrawal will take place on the first day of the following month.’ The European Council ‘also notes that…the United Kingdom has a right to revoke its notification at any time’.

‘Ratification of the withdrawal agreement’ was presumably supposed to mean acceptance within the UK of the then Prime Minister’s draft agreement; and ‘ratified by both parties’ was presumably intended to mean formal acceptance, rather than ratification in the technical sense of international treaty law.

The decision of the European Council does not say what would happen if the Withdrawal Agreement is not ratified by both parties before 31 October 2019. It does not use the formula of Article 50(3) to the effect that ‘the Treaties shall cease to apply to the State in question’ at the expiration of the time-limit.

Nevertheless, it seems to be taken for granted that the UK will cease to be an EU member state on October 31, 2019, if its notification of intention to withdraw is not revoked and the period of negotiation of a withdrawal agreement is not extended.

That view is correct only if the European Council’s decision of 10 April 2019 created a second time-limit for conclusion of an agreement and if such a decision would be legally valid, and if the decisions taken by the EU institutions to give legal effect to UK withdrawal without an agreement would be legally valid. Both of those assumptions are open to legal challenge.

Creating a second time-limit

Article 50 of the Treaty on European Union creates a two-year time-limit for negotiation of an agreement which, on this occasion, expired on March 29, 2019. Article 50 allows for the extension of the period of negotiation beyond that date. It does not expressly confer a power to create a second time-limit leading to the automatic withdrawal of a member state. It has apparently been assumed that Article 50 confers such a power by necessary implication.

The rules of International Law on treaty interpretation say that if the plain meaning of a treaty text, let alone an implied meaning, leads to a result that is manifestly absurd or unreasonable, another interpretation is possible, giving effect to the object and purpose of the treaty text as a whole.

Withdrawal from the EU under Article 50 is withdrawal byagreement. It does not confer a power of unilateral withdrawal permitted by many other international treaties. So-called no-deal Brexit on October 31, 2019 would amount to allowing the UK, one of the largest EU member states, to withdraw unilaterally by means of its own failure to act, completely regardless of the interests, policies and politics of all the other member states which would be profoundly affected by such unilateral withdrawal, and regardless of the enormous worldwide effects of a unilateral UK withdrawal, including legal chaos in the UK and the EU and in countless other legal systems and situations across the world. To give such a meaning to Article 50 is manifestly absurd and unreasonable.

On this view, the International Court of Justice, the ECJ or the UK Supreme Court (after obtaining a preliminary ruling from the ECJ) could decide that, if the agreement of 10 April 2019 extending the period of negotiation had created a second time-limit leading to an automatic UK withdrawal, then that would have been an unlawful act (lacking a legal basis) and hence invalid (without legal effect).

EU implementation of UK withdrawal

The EU institutions would give legal effect within the EU to the withdrawal of the UK without a withdrawal agreement. Unless the EU’s constitutional treaties were amended between now and October 31, which is not possible, the existing system of decision-making in the EU institutions would apply. The EU has seven primary institutions with decision-making powers. The European Parliament, the European Council, the Council, the European Commission, the ECJ, the European Central Bank, the Court of Auditors.

Leaving the last two institutions on one side for present purposes, each institution has its own decision-making powers, and also powers exercised in conjunction with one or more other institutions. In the case of legislation, such as regulations and directives, the typical process involves joint action by the Commission, the Council and the European Parliament. Typically also, decisions in the Council are made by unanimity or by a qualified majority.

Article 50(4) excludes representatives of the withdrawing member state from participating in the discussions of the European Council or the Council on the negotiation and conclusion of the withdrawal agreement ‘or in decisions concerning it’ (a painfully imprecise phrase). A special form of ‘qualified majority’ is created for this purpose. The text does not preclude the participation of representatives of the withdrawing state in the decision-making of the European Parliament, including legislation implementing UK withdrawal, in which the European Parliament must be involved as a co-legislator.

If Article 50(4) does not exclude the participation of UK members of the European Parliament in decisions implementing UK withdrawal, the UK members of the European Parliament would be entitled to take part in those decisions and, if they were prevented from participating, the decisions would presumably be invalid.

If there is no valid agreement or decision creating a second time-limit, then all decisions of the EU institutions giving effect to UK withdrawal without an agreement, whether made before or after October 31, would be invalid.

The ECJ is frequently called upon to consider the legality and validity of acts of the EU institutions. This classic constitutional and public law jurisdiction can be exercised before or after a decision is made.

Philip Allott is Professor Emeritus of International Public Law at Cambridge University.

The Prime Minister’s recent announcement that Parliament would be prorogued, thereby severely curtailing the opportunity for parliamentary debate, raises important issues of constitutional principle and law, and also issues concerning fact and causation. They are examined in turn.

Constitutional Principle and Law

We begin with constitutional principle and law. We seek to decide whether the courts should intervene via judicial review, in order to prevent Parliament from being prorogued. We do not, however, begin with a clean slate. We look to case law where the courts have intervened to curtail prerogative power, discern the underlying principles, and then decide whether those are applicable to the case at hand.

Consider then the principal case law concerning constraints on prerogative power dating back to the seventeenth century. The constraints on prerogative power embodied in Proclamations, De Keyser and Miller all protect parliamentary sovereignty. Parliament is the legitimate legislator within the UK and the case law protects that authority from being undermined. If the executive could change the law of its own volition, it could thereby bypass legislation without amendment or repeal, hence the principle in Proclamations. If the executive could use the prerogative where Parliament had already addressed the issue in an existing statute it could then avoid the legislation crafted by Parliament, hence the principle in De Keyser, and its extension to cases where the prerogative would frustrate the legislation. If the executive could render a constitutional statute devoid of effect through recourse to the prerogative, the statute would not be worthy of that appellation, hence the reasoning on this issue in Miller, drawing on that in HS2.

Proclamations protects parliamentary sovereignty directly, by preventing recourse to the prerogative where it would change the law. De Keyser and Miller protect sovereignty indirectly: the former by precluding use of the prerogative where the formal law is left intact, but the executive seeks to circumvent it by use of the prerogative; the latter case by preventing a constitutional statute from being emasculated through executive action, even if it remained formally on the statute book.

The salient issue in relation to prorogation is whether the Prime Minister’s discretionary power should be limited pursuant to the principles underlying the case law set out above. The argument for an affirmative answer is compelling. This is so for two related reasons.

First, to contend that there is some difference between the existing case law and the present situation does not withstand normative examination. The reality is to the contrary, the rationale for intervention to protect parliamentary sovereignty is even stronger than in the preceding cases. Consider the following two propositions. Parliament has enacted a statute, the executive seeks to circumvent it by recourse to the prerogative, and the court intervenes to protect parliamentary sovereignty via the De Keyser principle. Parliament wishes to exercise its legitimate authority through enactment of a statute, or in some other way, the executive precludes this through prorogation, and the court is said to be powerless to intervene.

This distinction makes no principled sense, more especially because the latter abuse of discretionary power is more far-reaching and significant than the former. The former impacts only on a particular statute. The latter constitutes a pre-emptive strike that takes Parliament out of the entire game for the crucial period during which it is prorogued. It affects not merely one piece of legislation, but its capacity to exercise the totality of its legislative authority, thereby severely curtailing the opportunity for parliamentary voice on an issue that, whatsoever one’s views about Brexit, is of major importance for the UK’s future. This is, moreover, the reason why judicial intervention in this instance would not signal some general judicial intrusion in this terrain. The use of prorogation in this instance is singular, and warrants judicial intervention.

Secondly, the case for judicial intervention is also compelling because of the impact of the abuse of power in relation to prorogation on the sovereignty principle itself. The sovereignty of Parliament is the foundational principle underlying the unwritten UK constitution. This sovereignty resides with Parliament, not with the executive. Compare once again the preceding scenarios, and their relative impact on this foundational principle. The De Keyser scenario represents a challenge to sovereignty, since the executive seeks to bypass an existing statute, through recourse to the prerogative. It was for this very reason that the House of Lords intervened to prevent this. The prorogation scenario is more far-reaching in its impact on sovereignty. The reason is not hard to divine. The political discussion of prorogation by the present government was predicated on the assumption that it could be legitimate for the Prime Minister to make use of this power intentionally to bypass what was felt to be a recalcitrant Parliament. This is not and cannot be constitutionally correct. To subscribe to such reasoning per se diminishes parliamentary sovereignty as a foundational principle, and transforms the UK constitutional order such that the cards become stacked in the executive’s favour.

Nor can such reasoning be defended on the ground that the Prime Minister believes that this use of prorogation would be justified in order to fulfil the will of the people. Let us leave aside the fact that the Prime Minister presently has the slender legitimacy that comes from a vote of 92,000 Conservative members; let us leave aside also the fact the divination of the will of the people in terms of being content with a no-deal Brexit is fraught with difficulty. The root problem with this reasoning is more serious, and betrays a deeper lack of understanding of our constitutional order. The sovereignty principle inheres in Parliament and the totality of members thereof at any one point in time. The very idea that Parliament can be swept aside because its view does not cohere with the executive is to stand principle on its head. We are constitutionally impoverished if we regard this as the new constitutional norm.

Fact and Causation

There is no doubt that supporters of prorogation will attempt to blunt the preceding argument by repeating the claim that it was not driven by the desire to forestall discussion of Brexit, but because the Prime Minister wished to press ahead with his new agenda, and did not wish to wait until after the presently existing Brexit deadline. This is then coupled with the argument that the present parliamentary session has been very long, and that it is legitimate to signal the new beginning with the Queen’s speech scheduled for mid-October.

A response to this argument, voiced by many in the aftermath of the prorogation announcement, is simply to regard it as a veneer that conceals the real reason for the prorogation, which is to limit the time for parliamentary voice on Brexit. Truth to tell, there have been government statements post the prorogation announcement that acknowledge its impact on the domestic Brexit agenda, and that in Brussels.

A second response would be that, even if we assume that the desire to press ahead with a new agenda represented reality, the costs in terms of the impact on parliamentary sovereignty are simply far too great, more especially at this crucial time for Brexit deliberations. Indeed, one could press further in this regard: given that the present parliamentary session has lasted a long time, a few more weeks would hardly make a crucial difference in terms of getting the Prime Minister’s new agenda on the road.

The third response is that the preceding argument makes no sense in its own terms. Consider the following. We have a fact, the Prime Minister’s statement that he wishes to press ahead with his new agenda. We have assertion of a second fact, prorogation is said to be necessary to enable the first fact to happen. There is assumed to be causation between the two. This assumption is a non-sequitur. If the Prime Minister wishes to kick start his new agenda now, there is nothing legally or politically to prevent him from instructing civil servants in the relevant departments from pressing on to draft the requisite legislation, sort out the finances and the like. They were probably already doing this before prorogation. The reality is not merely that the causation is lacking. It is that prorogation will almost certainly hamper prime ministerial efforts to roll out the new agenda. If prorogation occurs, Parliament does not sit, no legislation is enacted, and there is a danger that some necessary Brexit legislation will be lost or impeded because of prorogation. If Brexit happens there will then be a log-jam of Brexit-related measures that require enactment, thereby pushing into the long grass efforts legislation designed to address non-Brexit issues.

Editors’ note: The blog is now on holiday for the month of August. The editors will be pleased to receive new submissions from Monday, 2 September.

Introduction

The Government and Parliament have again clashed over Brexit. The Prime Minister, Boris Johnson, will not rule out prorogation of Parliament as a means of achieving Brexit on 31 October. At the same time, on 24 July the Northern Ireland (Executive Formation etc.) Act 2019 was passed, with the then Government under Theresa May unsuccessfully opposing amendments that appeared to impose legal restrictions on prorogation. Dramatic scenes unfolded during the Bill’s passage. The media headlines were equally dramatic. The Guardian reported: “MPs pass amendment seeking to thwart no-deal Brexit prorogation”. And the BBC: “Brexit: MPs back bid to block Parliament suspension”.

Opponents of prorogation have welcomed the 2019 Act and the legal restrictions on prorogation that it is thought to impose. I will suggest that this enthusiasm might need to be tempered. I will first discuss (1) a concern about the text of the 2019 Act. Given its precise wording, what the Act requires may be more contentious than generally thought. I will then consider (2) a possible problem stemming from the passage of the legislation through Parliament – specifically, a problem relating to Queen’s Consent.

The Northern Ireland (Executive Formation etc.) Act 2019

Northern Ireland has been without a devolved government for over two years following a political breakdown between the Democratic Unionist Party and Sinn Fein in January 2017. Attempts to restore the power-sharing government in Stormont have been unsuccessful. The 2019 Act seeks inter alia “to impose a duty on the Secretary of State to report on progress towards the formation of an Executive in Northern Ireland”.

The reporting obligations are imposed on the Government under Section 3 of the 2019 Act. The text was heavily amended during the Bill’s passage through Parliament. Several progress reports are required before 31 October. The Government is required to publish a report “on or before 4 September 2019” (Section 3(1)), and another report “on or before 9 October 2019 and at least every fourteen calendar days thereafter” (Section 3(5)). In addition, Section 3(2) requires the Government to move a motion on each progress report in the Commons and Lords, and under Section 3(3) this must be done within five calendar days following the report’s being laid before Parliament.

Section 3(4) was viewed as a critical insertion during the legislation’s passage. It provides as follows:

If, as a result of Parliament standing prorogued or adjourned, a Minister of the Crown cannot comply with the obligations in subsection (2) or (3), a proclamation under the Meeting of Parliament Act 1797 shall require Parliament to meet on a specified day within the period within which compliance with subsection (3) is required and to meet on the five following days (other than Saturdays, Sundays or a day which is a bank holiday in the United Kingdom or in any part of the United Kingdom) to allow for compliance with subsection (3).

In Parliament the debates and voting on this provision set off fireworks. The Government unsuccessfully opposed the insertion of this provision in a Commons vote on 18 July, and in a Lords vote on 22 July.

At first blush the 2019 Act indicates that Parliament is to meet during September and October, in spite of possible prorogation, to discuss the Government’s progress reports on the formation of a Northern Ireland Executive. As a result, the 2019 Act has been universally welcomed by opponents of prorogation who view it as an important step towards legally restricting Parliament’s suspension. As we shall see, however, things may not be entirely straightforward.

(1) Uncertainty about what the 2019 Act requires

The first – and I think the main – problem is that it is unclear whether Section 3(4) makes mandatory the very issuing of a proclamation that Parliament meet. Section 3(4) provides only that “a proclamation under the Meeting of Parliament Act 1797 shall require Parliament to meet …”. It is not unequivocally clear that this obligates the Queen to issue a proclamation in the first place. It may simply be confined to imposing a requirement about the content of a proclamation – whether or not one is issued. There is some residual play here on which the Government might rely. To emphasise the point, consider the following two possible additions to Section 3(4):

Her Majesty may decide that a proclamation under the Meeting of Parliament Act 1797 shall require Parliament to meet …

Her Majesty shall decide that a proclamation under the Meeting of Parliament Act 1797 shall require Parliament to meet …

The fact that either italicised phrase may be inserted – that neither seems to do violence to the existing text – draws out the uncertainty.

The worry, then, is that opponents of prorogation may have snatched defeat from the jaws of victory. Hilary Benn MP (Labour) was, alongside Alistair Burt MP (Conservative), a lead sponsor of what became Section 3(4). Speaking in the Commons in support of its insertion, Benn cited existing legislation obligating Parliament to meet in spite of its being prorogued: the Civil Contingencies Act 2004 and the Reserve Forces Act 1996. The difficulty is that these statutes do impose a clear obligation on the Queen to issue a proclamation. According to s 28(1) of the Civil Contingencies Act 2004:

If when emergency regulations are made under section 20 Parliament stands prorogued to a day after the end of the period of five days beginning with the date on which the regulations are made, Her Majesty shall by proclamation under the Meeting of Parliament Act 1797 (c. 127) require Parliament to meet on a specified day within that period.

And s 68(10) of the Reserve Forces Act 1996:

If, when a recall order is made, Parliament is separated by an adjournment or prorogation which will not expire within 5 days—

(a) a proclamation shall be issued for the meeting of Parliament within 5 days; …

In these two instances, an obligation is imposed on the Queen to issue a proclamation – as well as a requirement about the proclamation’s content.

To address the concern with the Benn-Burt amendment and remove any “wiggle room” that the Government might claim, I wrote to Benn and Burt’s offices on 18 July suggesting that they may wish to seek a further amendment to the Benn-Burt amendment as follows:

If, as a result of Parliament standing prorogued or adjourned, a Minister of the Crown cannot comply with the obligations in subsection [(2) or (3)], a proclamation shall be issued under the Meeting of Parliament Act 1797 (c. 127) requiring Parliament to meet on a specified day within the period within which compliance with subsection [(3)] is required and to meet on the five following days … to allow for compliance with subsection [(3)].

This would align with previous legislative examples. But the suggestion was not taken up, perhaps for political reasons. A further amendment would require further approval – prolonging parliamentary Ping-Pong – and additional votes could be politically risky, at least in the Commons. There may also, or instead, have been a concern about securing the Bill’s passage before the parliamentary recess commencing 25 July. (Royal Assent was granted on 24 July.)

If the matter were litigated, opponents of prorogation would probably point to Hansard, indicating that the concern set out above did not in fact trouble parliamentarians and that there was instead a general understanding that what became Section 3(4) would legally restrict prorogation. Nonetheless, judges are obligated to apply the law that was made, not the law that law-makers thought they had made.

(2) The prerogative and Queen’s Consent

I have suggested that the text of the 2019 Act does not straightforwardly establish a relevant legal restriction on prorogation. This is the main worry. But there is also a further curiosity about the legislation’s passage, and it concerns Queen’s Consent. According to Erskine May (25th edn 2019), “Bills affecting the prerogative … require the signification of Queen’s consent in both Houses before they are passed” (para 9.6). Queen’s Consent is separate from and additional to Royal Assent. Queen’s Consent is a matter of House procedure, and is nowadays signified at a Bill’s Third Reading (see eg the guidance of the Office of the Parliamentary Counsel, Chapter 5). The rule is of the two Houses’ choosing; nothing stops the Houses from deciding to do things differently in the future. The rule’s justification, examined elsewhere, is doubtful (see eg written evidence provided to the House of Commons Political and Constitutional Reform Committee’s 2014 report on “The impact of Queen’s and Prince’s Consent on the legislative process”).

Exactly when Queen’s Consent is required is not always certain. According to the Cabinet Office’s Guide to Making Legislation (2017), “[i]t is not always easy for Bill teams to spot where Queen’s … consent may be needed” (para 18.3).

Queen’s Consent was not sought during the passage of the Northern Ireland (Executive Formation etc.) Act 2019. On one reading this strengthens the view that the 2019 Act does not in fact impose a legal duty on the Queen to issue a proclamation summoning Parliament. If it did impose such a duty, it would be prerogative-affecting because it would confine the Queen’s power to prorogue Parliament by imposing a duty that she exercise the power under certain circumstances. It would, on this view, be no different from other instances where a Bill proposing a restriction on the exercise of a prerogative power required Queen’s Consent – eg the Bill that became the Lords Spiritual (Women) Act 2015, which was deemed to be prerogative-affecting in requiring that, for a ten-year period only, vacancies for Church of England bishops in the Lords (Lords Spiritual seats) were to be filled by eligible female rather than male bishops. (Other examples are listed in Appendix A of the Office of the Parliamentary Counsel’s guidance.)

One difficulty should be acknowledged, however. Hansard reveals that Queen’s Consent was not sought during the passage of the Reserve Forces Act 1996 as well as the Civil Contingencies Act 2004 – despite their containing provisions clearly imposing a duty on the Queen to summon Parliament when prorogued. Perhaps this was an oversight – ie Queen’s Consent should have been sought in both these cases. Mistakes can of course be made. (It should be noted that a Bill approved by both Houses and receiving Royal Assent establishes a valid Act of Parliament even absent full compliance with House procedure such as Queen’s Consent.) Alternatively, perhaps such variation in the passage of Bills simply reflects the fact that the rule on Queen’s Consent is sometimes of indeterminate application.

Overall, we should be cautious about reading too much into the failure to seek Queen’s Consent during the passage of the 2019 Act. It does appear that uncertainty afflicts the operation of this rule; thus, we do not know why Queen’s Consent was sought for certain limited restrictions on the exercise of prerogative powers (eg the Lords Spiritual (Women) Act 2015) but not others (eg the Reserve Forces Act 1996). Still, in the case of the 2019 Act, opponents of prorogation should be aware that the Government may draw attention to this omission in furtherance of its argument that the 2019 Act simply does not impose relevant legal restrictions on the prerogative power of prorogation.

Concluding remarks

Although much confidence has been placed in the legal implications for prorogation of the Northern Ireland (Executive Formation etc.) Act 2019, the text of the legislation – and its passage – should be more closely scrutinised. If the Government moves to advise the Queen to prorogue Parliament, it will undoubtedly provide legal advice from the Attorney General. Opponents of prorogation can be better prepared if they understand all the lines of argument on which the Government may rely.

Two years ago on this blog, we drew attention to the immigration judicial review system—by far the most active area of judicial review litigation and the vast majority of all judicial reviews in England and Wales. In that post, we identified why there was a pressing need for further empirical exploration of the topic: not only was there a lack of understanding of litigation patterns but, on the basis of the evidence available, it seemed there was an issue of whether disputes were being channelled appropriately to judicial review (Paul Daly’s reflections on this post are available here). Since then, we have set about trying to build the evidence base that we argued was necessary to advance understanding. We collected data on the types of immigration judicial review claims and the views and experiences of people involved in the system. Our approach to the research was to collect both quantitative and qualitative data. We then combined the data gathered through these methods to inform our analysis. Our data included case-file analysis of Upper Tribunal judicial review cases and interviews with judges, representatives, users of the system, and others. We also undertook observations. Our full findings are set out in a detailed report, which we are publishing today. In this post, we provide a summary of our key conclusions.

Following the transfer of most immigration judicial reviews from the Administrative Court to the Upper Tribunal in 2013, the tribunal’s caseload was initially very high, but has since declined. Most judicial reviews are fact-specific; they turn on their own specific facts and circumstances and tend not to raise wider points of law and policy. Many claims raise issues concerning the application of asylum and human rights law, especially the right to respect for family and private life under Article 8 of the European Convention on Human Rights. Many judicial reviews are lodged in an attempt to secure an in-country right of appeal (instead of an out-of-country appeal). While there is an ongoing debate about the relative advantages of appeals as against judicial review, the removal of appeal rights under the Immigration Act 2014 does not seem to have led to a significant increase in judicial reviews.

Many judicial review claims are refused permission because the Upper Tribunal decides that they are unarguable. The use of template, standard, and unparticularised grounds of challenge is a common, though not universal, feature. There are continuing concerns regarding the variable quality of representation for claimants. Action has been taken to deter lawyers from repeatedly lodging abusive and vexatious judicial review claims. Anecdotally, this may have led to a reduction in the volume of judicial reviews. There is evidence that some people are at risk of exploitation by unscrupulous advisers. At the same time, good quality representatives work under a range of pressures and find that this environment can hinder their work.

The majority of judicial review claims are refused permission to proceed. Nonetheless, there are concerns about the quality of initial Home Office decisions. We encountered instances of poor decision-making effectively challenged by way of judicial review. We found that 20 per cent of the cases we examined are settled out of court, with an agreement that the case be reconsidered by the Home Office. We also encountered the phenomenon of “repeat judicial reviews.” That is, when a second judicial review is lodged against a fresh Home Office decision which is very similar to the initial decision. This was symptomatic of wider issues of poor communication between the Home Office and claimants.

As regards the categories of immigration judicial reviews, there is a wide range of immigration decisions that are challenged by way of judicial review. However, much of the caseload is concentrated within a few categories of case: asylum and human rights claims certified as clearly unfounded; fresh asylum and human rights claims; and removal decisions. Many judicial review challenges are lodged either to secure an in-country appeal or to prevent or delay an individual’s removal from the country. Challenges to Home Office delay used to feature prominently in the caseload, but this is no longer the case.

There is a wider debate concerning the appropriate remedies that should be available. Judicial review is an important remedy, but its scope is relatively limited. By contrast, appeals to tribunals involve a full re-hearing of a case. We encountered the view from representatives that a right of appeal to the tribunal is a more preferable and effective remedy than judicial review. We also encountered the argument that some specific types of decisions that affect an individual’s fundamental rights, but are currently non-appealable, should attract a right of appeal. These include decisions concerning human trafficking, statelessness, and domestic violence.

As regards claimants, we found evidence that they are often desperate and find the process difficult to understand and stressful. Most, though not all, claimants are legally represented, but the quality of such representation varies enormously. Most claimants are self-funding. Very few claimants appear to be in receipt of legal aid. The process for seeking Exceptional Case Funding is perceived as being difficult. We encountered concerns about the ability of litigants in person to navigate the system effectively. The judicial review process was not designed with litigants in person in mind and there is accordingly a need to address the situation of litigants in person by, for instance, greater provision of guidance. The Upper Tribunal is aware of this challenge.

The wider programme of tribunal modernisation will in the future mean that aspects of the judicial review process will be digitalised. This will include both online applications and document-sharing. This is likely to enhance the efficiency of the process. Nevertheless, the parameters of the project are still being developed. More information needs to be made public about the project to enhance transparency and give the public and stakeholders the opportunity to scrutinise the project’s development. The greater use of Tribunal Caseworkers, another part of the ongoing reforms, will free up judicial time, but needs appropriate monitoring and oversight.

There is little reason to think that alternative dispute resolution would operate effectively as an alternative to judicial review in the immigration context. Nonetheless, the various forms of alternative dispute resolution already built into the process, such as administrative review, re-application, and settlement, could be made to work more effectively. The full implications of the withdrawal of appeal rights by the Immigration Act 2014 requires wider evaluation. The question whether to restore full appeal rights is a policy question. Nonetheless, it is arguable that certain decisions affecting issues of fundamental rights – human trafficking, statelessness, and domestic violence – could be more effectively handled through appeals than judicial review.

From one perspective, our findings pertain to the immigration judicial review system and we hope the new evidence we gather benefits the advancement of that specialist discussion. From another perspective, however, this is also a study of what many judicial reviews look like in a state where public law litigation typically revolves around large machine bureaucracies. It is striking how different the realities of this area of litigation are next to the discussion of judicial review often found in constitutional theory.

Professor Robert Thomas is Professor of Public Law at the University of Manchester.

Dr Joe Tomlinson is Lecturer in Public Law at King’s College London and Research Director of the Public Law Project.

I am a Brexiteer. I am also a democrat (indeed for me the two are very much connected). In this post, I argue that despite mainstream protests to the contrary, democratic principle points to a strong case for a second Brexit referendum. The argument also gives some food for thought regarding the democratic credentials of the UK constitution, and its prizing of Parliamentary sovereignty.

Most Brexiteers strongly disagree with the idea of a second referendum. The case for a second referendum is often seen as a “Remainer’s” cause. This piece argues that these stances are misguided: a consistent and rigorous application of democratic principle alone leads to a compelling case for a second referendum. This need not be a Remain case – in fact, making that central to the argument fails to take democratic principle sufficiently seriously.

To make this case, I will first elaborate a conception of democratic legitimacy. This provides the positive case for a second referendum: it is the ideal expression of political equality and respect for the decision-making capacity of individuals. I will then consider the popular “democratic” argument against a second referendum, showing it to be contradictory, or at the least, to lead to democratically dubious results. As well as making the case for a second referendum, this argument has wider implications for UK democracy, which will be drawn out along the way.

The Democratic Case for a Referendum

On the account presented here, the key to democratic legitimacy is political equality: democracy treats each individual, their views, beliefs and value judgements, equally in the process of collective decision-making. Majority decision-making in particular does this by according each participant maximum decisional weight compatible with giving the same to others. Waldron praises this as treating each morally autonomous individual with “respect”.

A referendum, operating on a simple majority, reflects this respect in a direct and immediate way: participants vote on the outcome itself, and their votes are given maximal weight. On this basis, “going to the people” in a referendum – including on the future of Brexit – would be the ultimate expression of democratic value: the people themselves, and everyone equally, are given maximal power to determine the decisions under which they live.

The debate since the original Brexit referendum has revealed a number of very important choices about how we Brexit. Deciding between these involves a number of value-laden judgements and balancing exercises: May’s Deal vs No Deal; both of these options (and possibly others) vs Remain. These are important decisions on which people disagree and which, on democratic principle, individuals themselves should have an equal say.

That this is a question of balance shows why each of the above options must be on the ballot paper – individuals must be given maximum power to weigh up and decide upon the options before our country. Taking No Deal off the table, for example, only gives part of the equation and removes the ability of people to set their own relative priorities. Taking Remain off the ballot paper does the same. This is why a referendum purely on how we Brexit, but not, in addition, whether, would be unsatisfactorily incomplete. It might carry a fleeting appeal for the hardcore Brexiteer, but in terms of its democratic credentials, such a referendum would fall short.

While giving individuals a maximal say on the various options available strengthens the democratic case for a second referendum, I have carefully avoided referring to any alleged “change in conditions” since 2016, or the “need” to avoid a No Deal. Nor have I argued that we need a referendum to break the current parliamentary deadlock, or in order to make the case for Remain. These are popular arguments among those who do call for a second referendum, but they are not necessary to make the case.

They are also instrumental concerns, rather than democratic ones. The implication is that, were it not for these factors, the case for a second referendum would fall short. This fails to take core democratic principle sufficiently seriously: democratic participation is not something that needs to be earned or granted only where specific circumstances require it – it is, as Waldron often puts it, the “right of rights”.

Democratically Undemocratic? The Democratic Objection to a Second Referendum

In light of the democratic credentials of referendums, it is peculiar that the apparent mainstream position is that a further Brexit vote would be anti-democratic. In addition to prominent Brexiteers, this has long been the Government line, with Theresa May often reminding us that ‘we had the people’s vote’, and ‘the people voted to leave’.

In short, the argument is that we must “deliver” on the “will of the people” expressed in the 2016 referendum. Anything else would be undemocratic. As one commentator put it, a ‘second referendum would erode the very basis of democracy by suggesting that rule by the majority is an insufficient condition for democratic legitimacy’.

The premise of this argument – that the 2016 referendum result must be delivered – treats the referendum as a legitimacy-giving device. Indeed, it is apparently the ultimate form of political legitimacy, giving the 2016 result a sacrosanct status as something that categorically must be delivered by MPs.

On the grounds above, this premise is well placed. However, while the objection is right to attribute strong democratic legitimacy to the result of a direct majority vote, it falls into an immediate tension in limiting this to the 2016 referendum alone.

The problem is that if the referendum process does give the 2016 result supreme democratic legitimacy, why does it not do the same for any further referendum? The qualities, and therefore democratic value, of the process remain unchanged – it is still a majoritarian process giving maximum decisional weight to individuals directly over collective decisions. Yet, a second referendum is given a toxic status and becomes the antithesis of democracy.

Unless this question can be satisfactorily answered – from democratic principle itself – the case that a further referendum would be undemocratic appears straightforwardly self-defeating. It would treat the majoritarian referendum process both as a legitimacy-giving and legitimacy-robbing device.

The obvious difference, it might be replied, is that we have already had a referendum. Perhaps this affects the democratic legitimacy of a second. However, treating this as making the difference leads to some democratically dubious results.

Endowing only the first referendum with democratic force leads squarely into the problem of entrenchment: the “will of the people” at one point in time – 2016 – is held to bind the people at a future point in time. Effectively, the current “will of the people” is indefinitely sacrificed to the past on the altar of “democracy”.

This irony would not be lost on classical democratic theorists: the problem of inter-temporal entrenchment – or the “dead hand of the past” – can be traced back to Jefferson and Paine. Perhaps not enough time has passed for this to count as “inter-generational” entrenchment (or for the hands to literally be “dead”). Indeed, it is difficult precisely to draw the line showing when a new “generation” supposedly begins. But regardless, the point stands that the people at one point in time are bound by the past. This is a further reason why a referendum without Remain as an option would be unsatisfactory on democratic principle.

Thus, on the “democratic” objection to a further referendum, from 2016 onwards individuals are in effect rendered powerless on all matters Brexit. This is far from democratic, on the conception above, and indeed on the conception assumed by those who prize the “will of the people”.

Putting Parliament in Its Place

The undemocratic picture gets even worse once a side effect of denying a second referendum is factored in. While citizens are disempowered, the Government and Parliament are left in control. The power to approve (or not) the final Brexit deal is – following some intervention – left to MPs. We are where we are because they have repeatedly rejected that deal.

MPs have also to date rejected the idea of a further referendum. First, in the series of indicative votes, then in making clear that even the promise to offer a referendum on the deal – to confirm the actual views of their constituents – was not going to be enough to get it through.

The result is that those who argue against a further referendum on the deal, and, yes, on Brexit itself, are arguing to disempower the people on a number of important, inter-related questions, such as those stated above: the balance between the benefits and drawbacks of the Withdrawal Agreement as against the benefits and drawbacks of No Deal; the benefits and drawbacks of each of the above as against Remain.

These are important, value-laden judgments, on which many hold views. The irony is that those who reject a further referendum on the basis that we must respect the “will of the people” are in fact disempowering those people on these crucially important questions. They are all left to MPs.

It might be replied that Parliament is democratic – indeed, “but we’re a parliamentary democracy” has become something of a soundbite. However, while we do have a long history of Parliamentary democracy, this says nothing of its democratic credentials vis-à-vis referendums.

Put bluntly, in democratic terms there is no competition. Not only is a direct majoritarian vote the ideal reflection of respect for the decision-making capacity of individuals, it throws into sharp relief some problematic elements of representation.

Despite its reputation as pleasingly “democratic” – thereby providing the normative underpinning for the doctrine of parliamentary sovereignty – representation has a prima facie elitist character. This is due to the inequality in decisional influence at its heart. Taken back to basics, representation involves giving greater control – greater decisional weight – to a small group of people, while leaving the rest with, at best, only indirect influence.

This not only underlines the point about the democratic credentials of a second referendum, it leads to a wider point about UK democracy. We have a system where MPs have the sovereign authority to decide the questions which face our society, where direct democracy – giving individuals this power – is seen very much as a special occasion (and to some not a happy one) grantable only on the whim of Parliament.

We have a system where the news of the day is whether Parliament will let a Government force the country down a No Deal route, while repeatedly refusing to allow individuals themselves to take this decision. In such a system, democracy and its underlying values of political equality and respect for the decision-making capacities of individuals is far from achieved. Referendums, and particularly a direct power for citizens to initiate them (as in Switzerland, for example), are a way of tempering this imperfection inherent in representative democracy.

Conclusion

I have put forward a principled democratic case for a second referendum: it would give individuals maximal decision-making power on the future of Brexit, and the value-judgements implicated. “Democratic” arguments against such a vote, while common, are misguided, and arguably give rise to democratically dubious results.

This case turns up some food for thought regarding the state of UK democracy more generally, highlighting the disempowerment and elitism at the heart of its lingering attachment to a pure form of Parliamentary democracy, in which direct decision-making is seen as an occasional pathology.

Brexit was seen by many as a chance to reinvigorate our democracy. Indeed, the principal reason I supported Brexit in the first referendum – and still do – is that it was the more democratic option; a chance to enhance the future self-government of the UK, and to move power closer to its individual citizens. The argument in this blog has tried to take this sentiment seriously. Parliament has, with a little help from the courts, staked its claim in the process. But for a democrat it is not only the Government which needs putting in its place – it is Parliament too. The Brexit process itself seems a good place to start.

Many thanks to Robert Craig, Gavin Phillipson and Alison Young for, as ever, thorough and helpful comments on previous drafts.

Kyle Murray is a Teaching Fellow in Public Law and Human Rights and PhD Candidate at Durham Law School, Durham University.

The Revolution established the sovereignty of Parliament as a form of judicial review of executive power, it is submitted. The High Court of Parliament, a supreme court and legislature, validated and authorised executive power, by demonstrating that executive power acts ultimately inside that independent forum rather than outside of it. The Bill of Rights required William III to act ultimately through the High Court of Parliament, when he made law, suspended law or taxed for example. Parliamentarians did not presume to bear a political supremacy over the executive power which remained monarchical until 1832. Instead the Revolutionary sovereignty of Parliament involved the supreme court and legislature authorising the monarch to act as the Sovereign, in Parliament. Three objections to this view are possible.

Dicey said of statutes that, ‘being passed to meet special grievances, bear a close resemblance to judicial decisions, and are in effect judgments pronounced by the High Court of Parliament’. But otherwise he neglected the curiality of the High Court of Parliament. This view fails to accommodate the sovereignty of Parliament in 1688. It also fails to accommodate an element of that sovereignty, the need for judicial independence from the executive power, upon legislators instituting themselves as the parliamentary executive through responsible government in 1832. Whereas the rule of law as established by the Revolutionary sovereignty of Parliament asserted judicial independence from the executive power, that is no longer the case under legislative supremacy as articulated by Dicey. His reduction of the sovereignty of the High Court of Parliament, to legislative supremacy, is inferior to the model proposed in this post, because his model did not ‘get in’ judicial independence. We shall see that his legislative supremacy also fails to accommodate Jackson.

Second Objection

The second possible objection to the view proposed in this post also relates to the O’Connell separation of the supreme court from the legislature. It is arguable that it undid the parliamentary character of the supreme court, and hence the Revolutionary curiality of Parliament to independently validate and authorise executive power. However, s.4 of the Appellate Jurisdiction Act 1876 referred to the judicial House of Lords as ‘Her Majesty in Her Court of Parliament’, a term Lord Bingham used as late as 2002. This indicates that the parliamentary character of the supreme court endured, at least until its repeal by the Constitutional Reform Act 2005, discussed shortly. But if it endured there have been few occasions since O’Connell when the supreme court could have acted separately from the political branches, to demonstrate that Revolutionary capacity to validate and authorise the executive power, independently of legislators who now generate the executive power themselves as the parliamentary executive. Arguably, review of legislation under the European Communities Act 1972 gave the supreme court such a chance, but in such cases it could be said that the court was merely acting under the authority of the legislature.

For this reason Jackson is Revolutionary. The reader will recall that the Blair Government sought to restrict hunting, and used the Parliament Act 1911 to by-pass the legislative House of Lords when enacting the Hunting Act 2004. Doubts as to validity continued to attend the new Act, despite it gaining Her Majesty’s assent. Unlike the judgments on European legislation, the need for an independent stamp of authority on the 2004 enactment precluded the supreme court from purporting to act on behalf of the legislature. Lord Bingham identified ‘Parliament’ with the legislature alone, and observed:

The appellants have raised a question of law which cannot, as such, be resolved by Parliament. But it would not be satisfactory, or consistent with the rule of law, if it could not be resolved at all. So it seems to me necessary that the courts should resolve it, and that to do so involves no breach of constitutional propriety [27].

The Attorney General’s acquiescence in the appeal [27] to the judicial House of Lords, and the judgment itself, revealed that as in 1688 the executive power today is not ultimately validated by its own assertions of its authority; whether the parliamentary executive in the legislature enacting legislation proposed by the same executive power, or the royal assent of the monarchical executive. Instead executive power is lawfully validated and authorised when it is required to act through an autonomous forum, the High Court of Parliament, a supreme court and legislature. When the UK supreme court reviewed and authorised the Hunting Act 2004 in Jackson, judicial review was differentiated from political forms of review of executive power, and the former was shown to be more independent, and therefore more authoritative. In Jackson, as at the Glorious Revolution, the High Court of Parliament exercised the sovereignty of Parliament to independently validate and authorise executive power. The O’Connell separation of the supreme court from the legislature furthered the judicial independence founding that sovereignty, rather than impeding or even undoing it.

Third Objection

It is convenient to consider the third possible objection to the view proposed in this post, in terms of recent commentary on Privacy International. Section 1 of the Constitutional Reform Act 2005 perpetuated the rule of law as it existed on 24 March 2005, just before Jackson was handed down on 13 October 2005. Mike Gordon describes Lord Steyn, Lord Hope and Baroness Hale as overtly speculating in Jackson about ‘the possible existence of common law limits on parliamentary sovereignty’. Professor Gordon proceeds to use that speculation as a vantage point for viewing the Supreme Court’s recent treatment of ouster clauses in Privacy International. The Court addressed a question about s.68(7) of the Regulation of Investigatory Powers Act 2000, partly in terms of whether Parliament can legally oust review of decisions by a body such as the Investigatory Powers Tribunal. A 4-3 majority of the Supreme Court rejected a statutory provision that ramped up the language of another ouster clause, rejected in Anisminic v Foreign Compensation Commission by the UK supreme court half a century earlier. Gordon says that ‘(t)o assert that it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review [131] is necessarily to reject parliamentary sovereignty, which functions to establish exactly the opposite state of affairs’.

Conclusion

In 1688 the executive power personally wielded an ‘ouster clause’. James II claimed that his extra-parliamentary prerogative was superior to his prerogative inside the High Court of Parliament, a supreme court and legislature, such that he could suspend the effect of legislation against Catholics. Parliamentarians defeated that claim by subjecting executive power to the sovereignty of Parliament, through the Glorious Revolution and subsequent legislation such as the Bill of Rights. The claim of the parliamentary executive to wield ouster clauses today similarly seeks to oust the jurisdiction of independent courts, despite Jackson confirming the capacity of the supreme court to independently validate and authorise executive power. The supreme court’s validation and authorisation of the Hunting Act 2004, after the Constitutional Reform Act 2005 gained assent, demonstrates its enduring membership of the High Court of Parliament, its continuing participation in the sovereignty of Parliament, and judicial independence from executive power. The institution of legislative supremacy by responsible government, the O’Connell separation of the supreme court, and the perpetuation of the rule of law by the Constitutional Reform Act articulate the need for judicial independence from executive power, as a feature of the sovereignty of the High Court of Parliament. The Supreme Court must continue to participate in the sovereignty of Parliament, by independently reviewing ouster clauses as in Privacy International.

I am grateful to Alison Young and Melissa Naylor for their very helpful comments on this post.

In a recent Times article, Lord Pannick QC – leading Counsel in the Miller litigation – argues that if a Prime Minister were to advise HMQ to prorogue parliament to achieve a No Deal exit, an application could be made to the courts to determine the lawfulness of such advice. Sir John Major said on the Today programme on 10 July that he would personally bring a judicial review of any decision by the Prime Minister to advise prorogation.

After briefly considering issues of timing and justiciability, Lord Pannick makes three main arguments as to why, in his view, advice to prorogue parliament to achieve No Deal would be ruled unlawful by the courts. First, he claims that proroguing parliament would contradict parliamentary sovereignty. Secondly he claims the urgency of the situation would make prorogation unlawful. Thirdly, he argues that such advice would be ‘seeking to evade parliament because it has previously made clear its wish to prevent a no-deal Brexit’.

While Lord Pannick’s argument is characteristically attractively presented, there are some significant difficulties with it. Of course, it must be borne in mind that a brief 800 word article in a newspaper cannot do justice to the full argument.

Space precludes detailed consideration of issues of timing but suffice to say that Miller was incredibly expedited, including leapfrogging the Court of Appeal, but it still took six months.

A caveat on the potential use of prerogatives in the Brexit context

I have previously defended the theoretical possibility of the use of Royal Assent and Queen’s Consent in some extreme circumstances if there were unprecedented moves by a shadow executive undermining the procedures of the House of Commons. I have ultimately justified these responses because the remedy of a vote of no confidence remains available.

My view on prorogation is considerably more conflicted, precisely because any overtly political prorogation to avoid a vote of no confidence contradicts what I view as the central principle of the political constitution which is the doctrine of confidence. Parliament represents a dialectical relationship between the two balancing forces of executive and legislature, both of which we choose in our bifurcated vote at general elections. When we vote in the UK, we choose a local MP, but in reality we also vote on a manifesto and on a slate of those seeking executive office.

Justiciability

The most serious problem facing any potential litigation relates to justiciability. In his article, Lord Pannick lightly touches on case law relating to passports, ex gratia payments and other successful applications to the court for review of the exercise of prerogative power. Unfortunately, these examples fall on one side of a clear red line for the courts in terms of the kinds of prerogative that they are normally prepared even to consider.

In GCHQ, Lord Roskill famously listed a series of prerogatives that he held would remain outside the court’s purview even after the test set out by the court for judicial review transitioned from the source of the power to the subject matter of that power. Technically the list is obiter dicta, of course.

The Roskill list includes ‘the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers’ (p418). The prorogation of parliament falls squarely within the category of prerogatives set out in this list. This is particularly true in this case because Lord Roskill states that it is prerogatives ‘relating to’ any of the above list that are in this category – this obviously includes prorogation which is historically connected to dissolution.

It is also worth noting that in the later case of Everett, a ‘high policy’ test for the prerogatives on the list was instituted, and that test has never been doubted. Indeed, in Abbasi, Lord Phillips MR expressly endorsed the ‘high policy’ test in considering the actions of the government under the foreign affairs prerogative.

Lord Phillips also used the phrase ‘forbidden areas including decisions affecting foreign policy’ ([106]) which also underscores the unlikelihood of any judicial intervention in matters as controversial and politically explosive as a political decision to prorogue parliament to achieve a No Deal exit. It is perhaps also worth mentioning that, in this particular case, a decision to prorogue would have direct and dramatic effects on foreign policy.

It is suggested therefore that prorogation would therefore fall well within the ‘high policy’ test given the intense political controversy that would surround such an action. It is therefore extremely challenging to see how such advice could be justiciable on any orthodox reading of long established case law. This rule arguably rests, in large part, on a point blank refusal to be drawn into controversial political matters. This deeply wise judicial instinct is strongly to be commended.

Argument from Miller?

It might be thought that the justiciability argument must be tempered by the fact that in Miller itself, a high policy prerogative (treaty power) was considered to be justiciable – indeed the justiciability argument was not even raised at the Supreme Court stage having been resoundingly rejected by the High Court. This would be to miss a crucial distinction between Miller and a potential prorogation. The courts have never held that a prerogative is non-justiciable when it is used in a way that intersects with a statute. In those circumstances, a completely different test is applied.

If statute overlaps with the prerogative, it goes into abeyance. Where a statute does not overlap, the test is whether the exercise of the relevant prerogative would frustrate the intention of parliament in any Act (Miller [51]). In such situations, the court is not concerned in any way with whether the nature of the prerogative concerns ‘high policy’. This is for the simple reason that statute trumps prerogative and it is the duty of the courts to see that the will of parliament as expressed in statute prevails. That is why the justiciability of the treaty prerogative was not an issue in Miller, despite it being on Roskill’s list.

Parliamentary Sovereignty means the will of parliament as expressed in statute

It is trite law that the will of parliament can only be understood through Acts of Parliament as a matter of law. Mere motions will not suffice. If they had, the motion in the House of Commons in December 2016, calling for notification under Article 50 to be sent, would have disposed of the Miller litigation.

Lord Pannick’s appeal, therefore, to the generic idea of ‘parliamentary sovereignty’ must therefore be approached with some caution. Parliamentary sovereignty means nothing more, and nothing less, than that each and every Act of Parliament that is on the Parliamentary Roll is supreme over any other law or legal power. In other words, whatever the Crown-in-Parliament formally enacts is binding law, save that Parliament cannot bind its successors.

It follows that if Lord Pannick could identify a particular provision of a statute that would be frustrated then the objections based on justiciability would immediately dissipate. Unfortunately, it is difficult to identify any such statutory provision. Instead, the much more nebulous language of ‘evading parliament’ is deployed. This leaves his argument looking somewhat thin.

The problem is that isolating a sound legal argument from ’evading parliament’ is difficult, whatever the constitutional and political arguments. This is not least because there is no particular statute to which reference could be made. Evading political scrutiny and debate is not a legal argument.

It seems unlikely that the courts would declare something unlawful based on it frustrating a provision of a non-existent Act that the courts would be predicting parliament might pass at some unknown time in the future. That would be to extend the principle in Fire Brigades Union by some distance, to put it mildly.

Lord Pannick goes on to claim that one aspect of the claim would be that, in his view, parliament has ‘made clear its wish to prevent a no-deal Brexit’. This particular claim is hard to follow. Nowhere in EUNoWA, EUWA or elsewhere has parliament made clear in legislation that in the event of there being no deal agreed with the EU27, the government is legally required to take steps to prevent the UK exiting the EU on that basis. It is true that a number of motions of the House of Commons have expressed that sentiment or similar but that is entirely another matter and, strictly speaking, irrelevant as a matter of law.

It could be argued that the silence in relevant statutes on any legal steps to be taken in the extensive legislation that has been passed since the referendum simply reflects the fact that few people expected that No Deal could actually happen. This is a reasonable stance. Nevertheless, it remains the case that the Article 50 process is in fact inexorable and (leaving aside revocation) remains outside the direct control of parliament, particularly if, say, the EU27 decided not to grant another extension.

It is also the case that there are no provisions altering the legal default outcome (for example by mandating a revocation) in the event that there is no agreement with the EU27 regarding the orderly withdrawal of the UK from the EU. The only possible exception might be the Cooper-Letwin Act which mandated the Prime Minister to seek an extension from the EU27 (I am grateful to Gavin Phillipson for suggesting this point in conversation).

It might be argued that this represents evidence that the will of parliament is that a delay is preferable to exiting without a deal. The problem with this argument is that Cooper-Letwin was very specific in terms of how and when it applied and its provisions are now spent. Really, the Act needed to have made further provision for the legal consequences in the event of No Deal. Attempting to read anything more into that Act seems implausible.

However alluring is the argument that the courts could step in, it is difficult to see how the exercise of the prerogative of prorogation in this case could be said to conflict with any particular provision of any statute.

Breaking new legal ground

Given the strength of the judicial dicta against Lord Pannick’s position, it would require an innovative and bold approach by the judiciary for any case to succeed. The courts would have to construct a novel rule that the mere possibility of Parliament wishing to pass some future legislation means that a purely political prorogation would be unlawful. This possibility cannot be ruled out but it would drive a coach and horses through long standing case law on justiciability, with unknown future effects.

Political controversy

The idea of the courts ensuring that parliament can do its core job of considering Brexit throughout the Autumn is undeniably attractive. It is suggested, however, that the courts would be rightly reluctant to intervene in such an intensely controversial political question, especially without the protection of an existing Act of Parliament that intersects directly with the relevant prerogative. To do so would be to draw the judiciary into the centre of a political firestorm. However politically controversial a prorogation might be, judicial intervention would only make the situation worse. Two wrongs do not make a right.

In those circumstances, reliance must be placed on the relevant parties being persuaded that advising HMQ to prorogue would be deeply politically and constitutionally inappropriate, rather than illegal or ultra vires.

Conclusion

This post has sought to address the possibility of litigation to challenge the lawfulness of using the prorogation prerogative politically. The proposal suffers from serious flaws, not least lack of time. It has been argued that the use of the prerogative of prorogation is not justiciable as ‘high policy’ in a ‘forbidden area’.

It has also been suggested that the argument that parliamentary sovereignty would be frustrated by prorogation is flawed because there is no particular statutory provision that would be frustrated by prorogation.

Furthermore, it seems highly unlikely that the courts would be drawn into what remains, in a political constitution, a matter of purest politics that should be dealt with by elected politicians, when parliament reconvenes, or at the ballot box.

In the recent case of R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] (hereinafter CAAT), the Court of Appeal invalidated the UK government’s decision to grant licences for the sale of military equipment to Saudi Arabia for possible use in the conflict in Yemen. The court found that the government had violated Article 2.2 of the EU Common Council Position 2008/944/CGSP, as adopted in the Secretary of State’s 2014 Guidance. Article 2.2 compels Member States to deny a licence for the sale of military equipment to other states if there is a clear risk that this equipment might be used ‘in the commission of serious violations of international humanitarian law’.

In 2015 a coalition of nine states led by Saudi Arabia commenced military operations against the Houthis in Yemen. The court in CAAT held that the question of whether there was a historic pattern of breaches of international humanitarian law on the part of the coalition – and Saudi Arabia in particular – was central to the estimation of the risk of future violations. The ‘historic pattern question’, however, was not addressed by the UK Government. That, according to the court, made the decision-making process irrational and therefore illegal. The court invalidated the granting of the licenses – but allowed the Secretary of State to reconsider his decision, by taking into account the historic pattern of breaches of international humanitarian law on the part of the coalition.

This case gives rise to interesting questions about justiciability, judicial deference and the scope of judicial review. Here, however, I wish to focus on the confusing yet common way in which the court used ‘rationality’ as ground of judicial review.

Rationality is a well-established ground of judicial review in UK public law. At the same time, the meaning of ‘rationality’ as ground of review is far from clear. Currently in UK public law, rationality review is understood in the following ways:

(1) Rationality as indistinguishable from reasonableness. It is quite common in UK public law to use the terms ‘reasonableness review’ (or Wednesbury reasonableness) and ‘rationality review’ (or Wednesbury rationality) indistinguishably, yet without always explaining the exact meaning of these grounds of review. It was probably the influential view of Lord Diplock’s in the GCHQ case (1984) that made the most significant contribution to enshrining the conceptual mistake of seeing reasonableness and rationality as indistinguishable. This was done by classifying the grounds of judicial review to three main categories: ‘illegality’, ‘irrationality’ and ‘procedural impropriety’; and by clarifying that ‘irrationality’ is in fact identical to ‘Wednesbury unreasonableness’.

(2) Rationality as a distinct ground of review that, compared to reasonableness, sets a lower hurdle for the administrative body. This approach, albeit within a specific context, was taken by the Supreme Court’s in its decision in Evans (2015), according to which a demand to base a decision on ‘reasonable grounds’ sets a higher hurdle than ‘mere rationality’ (paras 91, 129).

(3) Rationality as a ground of review that focuses on the decision-maker’s ‘mental process’ as opposed to reasonableness review that focuses on the outcome – i.e. the decision-maker’s decision. See for example Lord Sumption’s view in Hayes (2013) that ‘reasonableness is an external, objective standard applied to the outcome of a person’s thoughts or intentions… A test of rationality, by comparison, applies a minimum objective standard to the relevant person’s mental processes’ (para 14).

(4) Rationality as a mega ground of judicial review that covers more specific grounds of review such as acting in bad faith, acting capriciously or arbitrarily etc. For this view see also in Hayes, where Lord Sumption held that ‘a test of rationality… imports a requirement of good faith, a requirement that there should be some logical connection between the evidence and the ostensible reasons for the decision, and (which will usually amount to the same thing) an absence of arbitrariness, of capriciousness or of reasoning so outrageous in its defiance of logic as to be perverse’ (Hayespara 14).

(5) Rationality as fairness, consistency or equality. This approach was taken in Gallaher (2018), especially by Lord Carnwath and Lord Sumption who asserted that it is irrational to treat like cases differently – if there is no ‘objective justification’ for the different treatment {paras 27, 43, 44, 55 (Lord Carnwath) and para 55 (Lord Sumption)}.

(6) ‘Instrumental rationality’ that requires logical or causal relation between means and end. Instrumental rationality is in fact part of the principle of proportionality. It is common to refer to the principle of proportionality as a four-stage test which includes legitimate aim; suitability (or rational connection); necessity (or applying the least intrusive measure); and proportionality in the narrow sense (proportionality stricto sensu). When we apply the second stage that sets the suitability or rationality test we are asking whether the means (that is, interfering with a protected right or interest) can achieve the legitimate aim of the law or of the administrative decision. If there is no rational connection of any kind between the means and the end, that is, if the means cannot or does not achieve the end, then this is a decision that no rational person could have made.

In the recent CAAT case, rationality review was applied in a rather confusing way. At the core of its reasoning, the court equated rationality with the duty to take into account all relevant considerations. In other places in the judgment rationality was also equated with reasonableness. The court repeatedly held that it was irrational to not take into account the historic pattern of breaches of international humanitarian law on the part of the coalition while making the decision about granting the licenses (paras 35, 57-59, 62, 139, 144, 145, 153). The court relied on Tameside (1977) that established the proposition that a public body has a duty to carry out a sufficient inquiry prior to making its decision. The court emphasised that ‘the only legal error which is alleged to have been committed is founded on the public law doctrine of irrationality’ and that rationality refers to the decision-making process, and in our case – the duty to take into account all relevant considerations (para 57).

The problem is that not taking all relevant considerations into account is a distinct, well-established ground of judicial review in public law. Equating this ground of review with ‘rationality’ adds nothing to our understanding of that ground of review. It also means that rationality review has no distinct meaning in UK public law. The court then continued to assert that ‘what must be shown by CAAT is that the process which was adopted by the Secretary of State was one which was not reasonably open to him’ (para 57), thus equating rationality with reasonableness – and equating both with the duty to take into account all relevant consideration. A similar approach was taken by the Supreme Court in the Braganza case of 2015, by concluding that the decision that was scrutinized by the court was ‘unreasonable in the Wednesbury sense, having been formed without taking relevant matters into account’ (para 42, and see also paras 53 and 103).

With respect, arguing that it is unreasonable or irrational to not take all relevant considerations into account is conceptually confusing and in fact misguided. It is not more helpful than arguing that it is unreasonable or irrational to take irrelevant considerations into account, act in bad faith, be in a state of conflict of interests, act for an improper purpose etc. Describing distinct grounds of review by attaching the concepts ‘unreasonable’ or ‘irrational’ to them adds nothing to our understanding of these distinct grounds of review – and makes reasonableness and rationality mega-grounds of review with no distinct meaning. It is both surprising and unfortunate that conceptual mistakes that were made more than 70 years ago in Wednesbury – and 35 years ago in GCHQ – still inform current judicial decisions in UK public law. The GCHQ case, more specifically, collated almost all grounds of review that relate to the exercise of discretionary powers under the title ‘rationality’ – and continued to equate rationality with reasonableness, thus making the terms ‘rationality’ and ‘reasonableness’ redundant. But they are not. We should better describe what reasonableness review and rationality review are (as separate grounds of review) – and distinguish them from other, distinct grounds of review.

Reasonableness as a distinct ground of review can only be understood as a weighing and balancing test – one that refers to the content of the administrative decision rather than to the decision-making process. An unreasonable decision is one that results from according distorted weight to relevant considerations. Back in 1947, Lord Greene stated in the Wednesbury case that courts can scrutinize the reasonableness of an administrative decision only after establishing that the decision was intra vires; that the decision-making process was intact; that all the relevant considerations were taken into account; and that irrelevant considerations were not taken into account – or that the administrative body did not try to achieve improper purpose. Lord Greene failed to reach the inevitable conclusion: that after taking into account all relevant considerations and nothing but relevant considerations, the only thing that can go wrong with regard to the legality of the administrative decision is the weight accorded to the relevant considerations. Therefore, for reasonableness to have any distinct meaning in public law it must only refer to the weight that was accorded to the relevant considerations – and not to the relevancy of these considerations.

Rationality as a distinct ground of review can only be understood as ‘instrumental rationality’. This is perhaps the most common perception of rationality. It is often applied in the legal world and especially in public law – as part of the proportionality test. It describes rationality as deploying the appropriate means in order to achieve certain ends (whatever these ends may be). After years of applying the proportionality test in UK public law (in cases involving the ECHR or EU law) we now know what the rationality test means within the context of public law. Perceiving rationality as ground of review that focuses on the relation between means and end is the most helpful and accurate way to understand the distinctiveness of this ground of review. This perception of rationality is sufficiently specific – but not too narrow. It avoids vagueness and uncertainties. It does not apply to cases that are better described and scrutinised by other grounds of review. It is the only concept, together with ‘suitability’, that describes the necessity to have some relation between means and end – and it is already being applied in that way within the framework of proportionality review. All that we need to do is to apply this concept in the same way, clearly and consistently, also outside the context of proportionality review – and outside the context of protected rights.

The perception of rationality review as ‘instrumental rationality’ also explains why it is confusing and misleading to equate rationality with reasonableness, as only the latter is a balancing test. We should acknowledge that we have in UK public law two completely different grounds of judicial review: rationality and reasonableness. The only similarity between the two is that they allow the court to scrutinize the content of the administrative decision. But this is where the similarity ends as the nature of these ground of review, the requirements that they set for the administrative body and the levels of scrutiny they allow the court to apply are completely different.

Back to the CAAT case: the UK government did fail to take into account a relevant consideration. Labelling this failure as irrational or unreasonable is unnecessary, confusing and in fact misguided. The decision to grant licences could have been unreasonable only if the government took into account all relevant considerations but accorded them distorted weight. That was not the case in CAAT. The decision to grant licences could have been irrational only if the means (granting licences) had no causal or logical connection to the Government’s end (whatever that end might be). This question, however, was not discussed in CAAT.

The CAAT case does give rise to important normative questions about the proper scope and intensity of judicial review in UK public law, but these questions cannot be answered before we lay out a common ground with regard to the meaning of the grounds of judicial review – and especially the currently most ambiguous ones: reasonableness and rationality.

My thanks are due to Stephen Tierney and Luke Griffiths for commenting on the first draft of this post.

The case of R (Privacy International) v Investigatory Powers Tribunal is the latest in a series of high profile judicial engagements with the doctrine of parliamentary sovereignty. The case concerned the legal status of s.68(7) of the Regulation of Investigatory Powers Act 2000, and in particular, whether this provision constituted a successful attempt to oust the jurisdiction of the High Court to hear challenges to the decisions of the Investigatory Powers Tribunal by judicial review.

The Supreme Court divided this question into two parts, and the constitutional doctrine of parliamentary sovereignty was implicated in each strand in fundamental ways: first, in the specific context of interpreting Parliament’s legislative intention in enacting a provision which purported to immunise decisions of the Investigatory Powers Tribunal from further legal challenge; and second, in relation to whether it can ever be legally possible, in general, for Parliament to enact an ouster clause of this kind.

This post reflects on the judicial attitudes to parliamentary sovereignty evident in Privacy International, the force of this approach when considered in the context of other recent case law on this doctrine, and what this might suggest about the broader use of constitutional principles in the UK Supreme Court. There are reasons to doubt that the majority decision gives appropriate weight or effect to the idea of legislative sovereignty. Yet more significant than the specific outcome of Privacy International is the overarching constitutional framework in which the questions raised in this case are addressed. PrivacyInternational shows this framework is still being developed in the courts, and I will argue that this process of constitutional construction needs to be subject to critical scrutiny.

Parliamentary Sovereignty and Statutory Interpretation

The question of the proper approach to the interpretation of ouster clauses has long been a challenging one, since at least the (in)famous decision of the House of Lords in Anisminic v Foreign Compensation Commission. In that case, a majority of the Law Lords held that a provision to establish that ‘[t]he determination by the commission of any application made to them… shall not be called in question in any court of law’ was ineffective to prevent judicial review. In an exercise of linguistic creativity, the House of Lords concluded that where the Commission made an error of law while allocating compensation to corporate entities following the Suez crisis, it exceeded its jurisdiction – such an application had not therefore been determined and rendered immune from further legal challenge, but was instead a ‘purported determination’ which the courts could declare a nullity.

For those who were already unconvinced by the legal magic at the heart of Anisminic, the result of Privacy International will appear similarly challenging, for the ouster clause in s.68(7) of RIPA seemed explicitly designed to cut off this line of argument. It provided that ‘determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court’. This represents an upgrading of the language rejected in Anisminic in a number of ways, including adding ‘awards, orders and other decisions’ to the category excluded from legal challenge, and attempting to immunise even determinations touching on the jurisdiction of the Tribunal from further review. Yet by a 4-3 majority in the Supreme Court, this statutory attempt to confront the logic underlying the decision in Anisminic was to fail.

This generates a problem from the perspective of parliamentary sovereignty. It is well established that, as Lady Hale put it when giving the unanimous judgment of the court in R (Black) v Secretary of State for Justice, ‘[t]he goal of all statutory interpretation is to discover the intention of the legislation’, and ‘[t]hat intention is to be gathered from the words used by Parliament, considered in the light of their context and their purpose’ [36]. The words used by Parliament in s.68(7) are clear, and understood in the context of the decision in Anisminic, it seems even more clear that their purpose is to oust judicial review. In confirming an alternative statutory construction – one which is the opposite of what Parliament seems to have intended – the Supreme Court appears to be challenging the legislature’s legally unlimited law-making authority.

Of course, as the considerable body of case law and commentary around Anisminic demonstrates, we are long past the point where ouster clauses can be assessed on face value. If the provision in question in Privacy International is compared with that in Anisminic, it is clearly a more elaborate attempt to exclude judicial review. Yet other comparators also exist: the ultimately abandoned draft clause 108A proposed in clause 14 of the Asylum and Immigration (Treatment of Claimants etc) Bill 2003 (as introduced in the House of Lords) ran to 60 lines, prompted a public stand-off between the judges and the New Labour government, and (many believe) led to Lord Steyn, Lord Hope and Baroness Hale overtly speculating in R (Jackson) v Attorney General about the possible existence of common law limits on parliamentary sovereignty. Judged from that vantage point, the ouster clause in Privacy International starts to look like a very half-hearted attempt to avoid established precedent, a claim developed in further detail by Adam Tucker.

As the delicately balanced 4-3 decision in Privacy International shows, there is always scope for disagreement about Parliament’s true intention when enacting legislation, and this case will provide further fuel for the debate about judicial fidelity to statutory language. The stakes are certainly lower in this context, given s.68(7) has already been repealed, showing a lack of deep rooted legislative commitment to the always controversial decision to try to exclude judicial review. It is also not clear how meaningful in practice it will be to expose the decisions of the Investigatory Powers Tribunal to additional legal scrutiny. The Tribunal is already staffed by senior judges from the same ranks as those who will hear applications for judicial review, and (by s.67(2)&(3)(c)) it is explicitly required to apply the same principles as would be applicable in judicial review. Whether this will offer any substantial additional accountability for the activities of the intelligence services scrutinised in the Tribunal, or will simply elongate the standard avenues of legal challenge, remains to be seen.

Yet the extension of the Anisminic line of case law in Privacy International also comes at a cost, in terms of the public understanding of the law. Even if it is defensible to say that Parliament should by now be aware of the need for absolute precision to demonstrate an intention to exclude judicial review, Privacy International confirms we are well past the point where clear words are not enough to achieve the desired effect. If the monstrosity of clause 108A from 2003 now constitutes the bar to successfully provide that an actor other than the ordinary courts can have the final say in a decision-making process, we have surely reached an intolerable level of artificiality in the interpretation of legislative language, and, from a rule of law perspective, the regrettable position where only an elite understanding of legal doctrine will provide the necessary context to comprehend the meaning of statute law.

To oust judicial review may always be a controversial policy choice, but there is no reason it cannot sometimes be a legitimate one depending on the socio-economic context, and the design of the decision-making process. Crucially, it is also a policy choice that must remain open to a Parliament in possession of legal sovereignty, even if subject to increasingly contrived requirements of clarity. Yet Privacy International also features a contribution to the contemporary judicial tradition of doubting that full scope of Parliament’s legislative power, as a supplement to the majority’s unwillingness to accept the ordinary meaning of Parliament’s legislative language. This reveals a central tension in the reasoning of the leading judgment, in so far as it is premised on the idea that there is simply a presumption against interpreting legislation in such a way as to permit the exclusion of judicial review, but at the same time suggests this presumption is in fact a disguised prohibition established and enforced by the courts.

Parliamentary Sovereignty and Rule of Law Limitations

The most acute challenge to parliamentary sovereignty appears in the judgment of Lord Carnwath, with whom Lady Hale and Lord Kerr agreed. These comments are minority obiter dicta, for as Lord Carnwath noted, it was not necessary to decide this second issue, and Lord Lloyd-Jones concurred with his leading judgment only as to the interpretation of s.68(7). Yet despite their doubly qualified authority, these comments will no doubt attract considerable attention because, if accepted, they would amount to a rule of law constraint on the sovereignty of the legislature. According to Lord Carnwath:

I see a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law. [144]

Lord Carnwath’s attempt to distinguish his elevation of the rule of law from the minority obiter dicta in Jackson is unconvincing – the relationship between Parliament and the courts cannot simply be ‘governed by accepted principles of the “rule of law”’ [119] in a constitutional system which allocates legally unlimited law-making power to the legislature. Instead, the constitutional status of the rule of law is exactly what is in question. And this is regardless of the fact that Parliament has negatively affirmed the enduring existence of the ‘constitutional principle of the rule of law’ in s.1 of the Constitutional Reform Act 2005 – this minimalist recognition certainly cannot be seen as an uncontroversial invitation for the courts to ‘determine’ the ‘content and limits’ [121] of a multi-faceted constitutional norm which has complex legal, political and (arguably) moral dimensions.

Lord Carnwath is therefore contributing to, rather than avoiding, the ‘debate’ first manufactured in Jackson, and embellished in Axa, Moohan, and Public Law Project, as to whether there are judicially defined limits on the content of an Act of Parliament. To assert that ‘it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review’ [131] is necessarily to reject parliamentary sovereignty, which functions to establish exactly the opposite state of affairs.

It would be easy to read too much into these claims, which add to the volume of judicial uncertainty about parliamentary sovereignty, but take us no further in principle than previous speculation about the possibility of common law review of primary legislation in exceptional circumstances. From one perspective, such repetition of the idea that the rule of law has the potential to trump parliamentary sovereignty might be seen to add weight to such judicial claims. However, by regularising these assertions, but only as an abstract possibility, seemingly never to be acted upon, the opposite effect is arguably being achieved – the emptiness of the rhetoric becomes ever more evident, as familiarity diminishes their force.

Perhaps more significant than whether the courts possess the power hypothesised by some judges, which runs contrary to the fundamental principle of the UK’s constitutional order, is the broader inconsistency in approach this reveals. In Privacy International parliamentary sovereignty is (for a minority) a principle potentially in dispute, if it were ever to collide unavoidably with the rule of law. Yet in other recent cases, the courts have seemed far less troubled. In Miller, parliamentary sovereignty was an essential constitutional principle for the majority when it could be used to constrain the activities of the executive. And in the Legal Continuity (Scotland) Bill Reference, parliamentary sovereignty was absolutely crucial when settling a clash with the devolved administration in Scotland in favour of the UK’s central institutions (and this was for an almost identically constituted Supreme Court to that which decided Privacy International, with the only change in the former case being Lord Hodge sitting in place of Lord Wilson).

The legacy of Privacy International is not, therefore, that it heralds the limitation of Parliament through the rule of law, and the abandonment of parliamentary sovereignty which would inevitably result. On the contrary, such speculation about this doctrine is not determinative of the scope of parliamentary legislative authority, for if Parliament truly is sovereign, this is not a matter the courts can decide. Yet the case is revealing in so far as it provides a clear insight into the constitutional framework within which many judges increasingly see ideas of legislative authority operating.

Privacy International and the Synthetic Constitution

The critical problem with the body of doubts about parliamentary sovereignty to which Privacy International now adds is that it presents only a partial view of the UK constitution. This is a constitution in which legal principles are developed in isolation from the political dimensions of public power, attributed authority over and above political (and especially democratic) principles, and absent the input of the political institutions. The artificiality of this approach is most apparent in attempts to establish the courts as the potentially ultimate constitutional authority in some contexts, but to cling closely to parliamentary sovereignty in others. The effect is that a synthetic vision of the constitution is increasingly evident and prevailing in the UK’s highest courts – it is a framework which is superficially plausible, perhaps in some ways even attractive, but equally one which we are not compelled to accept as absolute or authentic.

Lord Carnwath’s leading judgment in Privacy International is a further contribution to this trend, not just in the way it perceives the limitation of parliamentary sovereignty, but in framing this as part of a ‘more flexible approach to the relationship between the legislature and the courts’ which is ‘wholly consistent with the modern constitutional settlement’ [131] . The status of parliamentary sovereignty is an emblematic issue given its function is to establish the constitutional primacy of political decision-making in the pre-eminent democratic institution of UK central government. Yet conceptualising the limitation of parliamentary sovereignty is just one part of a broader attempt to reconstruct the UK’s constitutional framework. Other core elements of this scheme are the judicial supposition of a scheme of ‘constitutional statutes’ with enhanced legal status, from Thoburn onwards, and the elaboration of a distinct category of ‘constitutional principles’ in cases such as HS2, again with additional legal weight attaching to that designation. And prime among these principles is the rule of law, which after the decision in Evans, coupled with that in Privacy International, appears ever more focused on vindicating the significance and finality of judicial oversight of decision-making, regardless of the intentions of the UK’s legislative body in establishing alternative arrangements.

The manner in which this synthetic constitution is being constructed through judicial action, and presented as a ‘modern constitutional settlement’, obscures the fact that there should be a choice: we are not compelled to accept the structures being developed by the courts, which are far from immutable or inevitable. It is important that we recognise the contestability of this evolving framework, retain the scope to scrutinise the core components and characteristics of this scheme as they are webbed together, and the capacity to challenge the right of the courts to author it.

It is not therefore sufficient to question the interpretation of legislation, or the extent to which parliamentary sovereignty is now limited through the rule of law. Instead, we can also challenge the authenticity of the constitutional framework in which these issues are being judicially confronted, rather than feel obliged to accept this vision on its own terms. For at the very least, Privacy International provides further confirmation that this framework is quickly coming to dominate, and arguably also distort, our understanding of key constitutional norms, values and relationships.

The recent massive street demonstrations against a proposal to enable extradition of some criminal suspects from Hong Kong to mainland China (as well as Taiwan and Macau) have focused global attention on the People’s Republic of China’s (PRC’s) criminal justice and judicial system, with protestors voicing their fears that any extradition arrangement would expose those removed under it to arbitrary detention, unfair trial and torture. The United Kingdom Government (softly) echoed this alarm when Theresa May told the Commons “it is vital that those extradition arrangements in Hong Kong are in line with the rights and freedoms that were set down in the Sino-British joint declaration.”

However, such concerns are not really new. The PRC has in recent years aggressively pursued across the globe those citizens whom it accuses of having enriched themselves through corruption and other unlawful means, using various mechanisms to return them to its territory to try pour encourager les autres. (See S Choo, “Circumventing the China Extradition Conundrum: Relying on Deportation to Return Chinese Fugitives” (2018) 50 NYUJILP 1361). It would be a far easier (and more diplomatically legitimate) process for other countries to agree formally to extradite such alleged offenders to the PRC. However, the PRC faces a problem in that many countries, including the United Kingdom, have moral and legal qualms about sending suspects into an investigative and judicial process with well documented human rights and procedural shortcomings. For example, Sweden’s Supreme Court currently is considering whether an individual accused of embezzlement can be extradited to the PRC consistently with the European Convention on Human Rights Articles 3, 6 and Protocol 13. Should a similar request ever be made of the United Kingdom, the same questions would have to be addressed under the Extradition Act 2003, ss 21 and 87.

The New Zealand Court of Appeal recently faced this issue in Kim v Minister of Justice [2019] NZCA 209. The PRC wishes to try Mr Kim in a Shanghai court for murder and has been seeking his extradition from New Zealand since 2012. (For full discussion of the background to the case, see M Douglas, “The Extradition Relationship Between New Zealand and China: Kim v Minister of Justice” [2017] NZCLR 123.) After receiving assurances from the PRC and other sources regarding Mr Kim’s treatment there, the Minister of Justice agreed to his extradition in 2016. Mr Kim sought judicial review of that decision, arguing in effect that the Minister simply cannot trust that the PRC will try him fairly. The Court of Appeal unanimously found that the Minister’s decision was flawed and ordered that it be revisited. This post considers first the substance of the Court’s ruling, before discussing the novel standard of review it applied to the Minister’s decision.

The Court of Appeal’s substantive ruling

The Minister of Justice first agreed to surrender Mr Kim to the PRC in 2015. Mr Kim successfully challenged this initial decision in the High Court (“the first review”) on the basis that the Minister had failed to properly assure herself that his rights would be respected by the PRC as required by the Extradition Act 1999, s 30. Subsequently, the Minister sought additional advice on those matters identified by the Court from a professor of law in Hong Kong, information from the New Zealand Minister of Foreign Affairs and his officials, and confirmation from Chinese officials about when New Zealand officials would have access to recordings of police questioning of Mr Kim. After reconsidering the matter in light of all this new material, the Minister once again concluded that Mr Kim could receive a fair trial in the PRC consistent with New Zealand’s human rights obligations and agreed to his surrender. Mr Kim’s initial challenge to the Minister’s second decision was rejected by the High Court (“the second review”), but accepted by the Court of Appeal.

The Court of Appeal summarised why they largely agreed with Mr Kim that the High Court’s second review judgment was wrong and the Minister’s decision remained flawed in spite of the further information received:

The concerns we have identified are wide-ranging. Some of the matters we have identified raise serious issues as to whether a decision to surrender Mr Kim could be made in a manner which is compliant with New Zealand’s international obligations. We have identified the difficulty that exists in obtaining assurances adequate to meet the risk of torture in a country where torture is illegal yet remains widespread because of cultural and systemic features of the PRC criminal justice system. Other issues may be still more difficult to address: the existence of direct political influence in the criminal justice system and the evidence of harassment, and even persecution, of criminal defence lawyers. We do not exclude the possibility however that further inquiry may produce information on these matters of which we are unaware, and which show a different picture of the PRC criminal justice system. (para 274)

In other words, the Court of Appeal regarded the problems with the PRC’s criminal justice system as being so deeply rooted and inimical to basic principles of justice that it may well be impossible for any Minister to ever be satisfied that a person can receive a fair trial in that country. And if that is the case, no reasonable Minister may exercise their discretion under the Extradition Act 1999 to agree to surrender a person for extradition to the PRC.

Needless to say, this represents a quite damning analysis of the PRC’s criminal procedure practices and legal system with ramifications beyond the judicial sphere. In particular, China has sought to establish an extradition treaty with New Zealand since 2016. Not only does the Court of Appeal’s judgment effectively halt any future extraditions to China under current legal procedures, it also puts a seemingly insurmountable hurdle in the way of establishing any such new treaty arrangement. Because, in this judgment’s wake, it is difficult to see how any government could claim to be confident that it is safe to send individuals to face trial in the PRC. Such concerns already have stymied an extradition treaty between China and Australia in 2017. It seems inevitable they will do the same in New Zealand’s case.

The Court’s application of standard of review

In addition to its significant political and diplomatic impact, Kim also represents a potential milestone in New Zealand administrative law: the first Court of Appeal decision to unequivocally accept and apply variable intensity of review. It is worth setting out the Court’s analysis in full:

The standard of review is not in issue on this appeal. It is common ground between the parties that the Judge applied the appropriate standard of review in both the first and second judicial review. In the first judicial review decision, the Judge held that, due to the fundamental human rights at stake, the appropriate standard of judicial review of the Minister’s decision is one of heightened scrutiny. Whilst not amounting to a merits view, it requires the Court to:

…ensure the decision has been reached on sufficient evidence and has been fully justified, while recognising that Parliament has entrusted the Minister (not the courts) to undertake adequate enquiries and to exercise her judgment on whether surrender should be ordered.

This approach reflects that it is not for the court to decide whether the relevant risk exists, but rather whether it was reasonable for the Minister to conclude that it does not. In doing so, the court is entitled to subject the Minister’s reasoning process to anxious or heightened scrutiny. (para [45], footnotes omitted)

In context, ‘anxious or heightened scrutiny’ was justified as:

All parties have proceeded on the basis that there are good grounds for concern as to the observance and protection of human rights in the PRC. It is therefore right that when the Minister makes a decision in connection with Mr Kim’s extradition the Minister is guided by a correct understanding of the law, and makes decisions properly grounded in evidence and only after consideration of all relevant evidence. (para [47])

Given that this decision represents something of a watershed, it is disappointing that the Court itself did not recognise this fact and take the opportunity to provide guidance and clarity to lower courts. Beyond referencing the High Court’s first review decision, the Court did not note any other cases or commentary on the standard of review question. That first review decision relied on the commentary in De Smith’s Judicial Review (7th ed, Sweet & Maxwell, London, 2013) to inform its discussion of intensity (at [7]), but it is undesirable to adopt this Russian doll approach to determining the theoretical basis for the Court’s reasoning. A core problem plaguing New Zealand’s approach to substantive review is that there has been little guidance from senior appellate courts as to the correct approach to follow. Mere mentions of the authorities are insufficient and assumptions that an area is settled are unhelpful. The Court’s decision in Kim thus squandered a golden opportunity to clarify one of the most confused and confusing areas of administrative law.

A final observation is that the Court itself might have benefitted from rehearsing the authorities and being far more clear as to the appropriate approach. It is uncertain, for example, whether the Court’s ‘anxious or heightened scrutiny’ approach is restricted to those grounds of review involving reasonableness or also applies to claims of error of law and taking into account irrelevant considerations. Certainly, the Court did not explicitly confine the ‘anxious or heightened scrutiny’ to reasonableness grounds. And the discussion of the appropriate standard of review ahead of the analysis of all grounds of appeal, along with mentions of it when considering matters other than reasonableness (see, e.g., [78]), appears to suggest that it was to have universal applicability. If this is indeed the case, then Kim represents a major departure from existing judicial discussion of intensity of review which largely confines it to the ground of reasonableness, and may even suggest a gradual shifting away from the grounds of review framework entirely (on which see D Knight, Vigilance and Restraint in the Common Law of Judicial Review (CUP, Cambridge, 2018)). We are, however, left to parse the words of the Court of Appeal as whether this really was its intention.

Regardless of whether the ‘anxious or heightened scrutiny’ standard was confined to reasonableness alone or applies to all grounds of review, we also may ask just what it actually involves. The Court’s attention to detail when analysing the PRC’s justice system suggests that it really was engaging in ‘correctness’ review. For instance, when considering whether the Minister could rely upon guarantees from the PRC government that Mr Kim would not be tortured, the Court found:

The Minister does not appear to have turned her mind to the systemic disincentives to complain of torture identified in the material before her. Were Mr Kim to complain, he would nevertheless remain under the control of those who had perpetuated the torture. There is nothing in the assurances to provide otherwise. There was also information before the Minister that those who torture seldom face consequences for so doing. A co-worker is unlikely to blow the whistle on torture, if they know they will probably have to continue to work with the wrong-doer. (At 135.)

This very close, granular analysis of the basis for the Minister’s decision has the appearance of the Court substituting its view for that of the Minister, in that it all but determines as a matter of fact that Mr Kim would continue to face a real and ongoing risk of torture irrespective of any undertakings the PRC government may provide.

Conclusion

The Court of Appeal’s decision in Kim has important ramifications for New Zealand’s diplomatic relationship with the PRC (which is now New Zealand’s largest trading partner), and provides a tantalising but ultimately frustrating suggestion of a significant development in the judicial approach to reviewing ministerial decisions. Its weight is enhanced by the fact the judgment’s author was the country’s now-Chief Justice Helen Winkelmann, while another member of its bench (Justice Joe Williams) also has been subsequently elevated to the Supreme Court. It will therefore be interesting to see if the New Zealand Government chooses to appeal this decision; both in terms of whether the Supreme Court can clarify the approach taken, and also how that body will be able to replace its two current members involved in deciding it.

This is part of a series of posts in which Richard Ekins reflects upon Lord Sumption’s Reith Lectures. You can find the first posts here, here and here.

In his fifth and final Reith lecture, broadcast yesterday morning and entitled “Shifting the Foundations”, Jonathan Sumption brings to a conclusion his reflections on “the decline of politics and the rise of law to fill the void”. The lecture encourages us to resist calls for a written constitution, calls which, Sumption says, “mark the extreme point” of “our persistent habit of looking for legal solutions to what are really political problems”. He makes the case instead for the merits of our historic constitution and for efforts to shore up the political foundations of our democracy.

Sumption notes that a written constitution would almost certainly expand the constitutional role of judges and that the point of every scheme for such has been to cut down legislative power. He reiterates his scepticism “about claims that our system of government can be improved by injecting a larger legal element into it”. I share the scepticism. Of course, not all legal changes are made equal. The devolutionary settlements, which the lecture goes on to praise, involve change to constitutional law, and expand the jurisdiction of the courts in important ways, but do not transform the constitutional balance between political and legal authorities. The key question, as Sumption implies, is whether legal changes disable or dilute legislative power and parliamentary democracy.

The British constitution is centred on “the sovereignty of Parliament”, which Sumption rightly says “is the foundation of our democracy”. Parliament is limited not by law but by conventions, which “derive their force from shared political sentiment”. The government takes a central place within Parliament, which “is not just a legislative or deliberative body but an instrument of government”. This scheme is very different to the constitutions of other states (New Zealand aside), but Sumption cautions the need to understand how it arose before looking for alternatives. The distinctiveness of our constitution, he says, is no vice as it is a result of our unique history. “For more than three centuries”, Britain “has been fortunate, or perhaps unfortunate, in having experienced none of the catastrophes that have called for new beginnings elsewhere.” And in practice, the political constitution has proved its worth, enabling “the British state to adapt to major changes in our national life which would have overwhelmed much more formal arrangements”. He takes devolution as his main example, contrasting the UK’s capacity to accommodate Scottish and Welsh nationalism with Spain’s difficulty with Catalan nationalism, a difficulty compounded by the rigidity of the Spanish constitution.

I agree that our constitution has proved its worth over time, enabling major political changes while maintaining continuity with our political and legal history. The openness of the Westminster constitution to radical political change is a virtue. This radical capacity is subject to the self-tempering discipline that today’s majority may be tomorrow’s minority: long-term, stable change requires widespread public support. Responsible government and parliamentary democracy are oriented towards the common good and make self-government possible. They form part of a shared constitutional tradition and their political foundation is the joint commitment of the people of the United Kingdom to be governed by way of these arrangements, which unite them in common action. The devolutionary settlements were introduced and have been extended in this way. The risk of the experiment, which Sumption perhaps should have noted (but see his outstanding lecture “The Disunited Kingdom”), is that devolution may end up eroding the common feeling that supports the constitution. That is, the United Kingdom may cease to be a single (if complex) political community.

Sumption’s intention is to persuade his audience “that we ought to be looking at more fundamental causes of the current diseases of our body politic than the peculiarities of our constitution.” Recalling his second lecture, Sumption argues that the real problem is public disengagement with politics, a phenomenon evident in declining party membership, falling electoral turnout, and widely shared contempt for politicians. The phenomenon is seen across the West and its causes, Sumption argues, “are inherent in the democratic process itself”. Echoing his first lecture, he notes that democracy generates expectations that are inevitably disappointed, undermining public confidence, a dynamic which is especially pronounced in hard times, when growth falters and inequality rises. Relatedly, “the perceived remoteness of politicians” is a problem, yet representative politics inevitably produces a political class, distinguished by ambition, zeal and knowledge. Modern ideas of representation, Sumption says, require representatives not just to act for the people but to be like them, which is always unlikely. And in the UK, the rejection of political elites has had a particularly significant consequence, which is to surrender political parties to extremists, making parties less capable of, or even interested in, compromise and responsible government.

Across the West, Sumption argues, political community is under strain and democracy has become ever less stable. “The United States has for the moment ceased to be a political community, because neither side of the major political divide respects the legitimacy of policy positions that they disagree with.” The same, he says, is true in Britain in relation to Brexit. This is an overstatement, it seems to me, but it is true that democracy requires us to recognise one another as fellow citizens, to jointly seek our common good, and to accept the legitimacy of decisions we make together. Representative politics requires political elites, but representation badly misfires not only when the masses have contempt for elites but also when elites disparage or disengage from the masses. In a powerful lecture earlier this year, Richard Tuck noted that the sociological foundations for democracy in the past included industrialisation, where national prosperity required mass action, and the age of citizen armies, where national defence required shared military service. Democracy is in trouble when elites and masses no longer understand themselves to share a common good, including when elites begin to identify more closely with a transnational or supranational community than with their own.

Having reviewed “our current problems of political legitimacy”, Sumption concludes that adopting a written constitution would “not make any difference”. For all it would do would be to shift “power from an elective and removable aristocracy of knowledge, to a corps of judges which is just as remote, less representative, and neither elective nor removable.” This is an understatement. Parliamentarians may be remote, but they are nothing like as remote as senior judges. They are exposed to public criticism and opinion in a way from which judges are, rightly, largely insulated. Investing judges with responsibility for political choice would sharply worsen the problem of political legitimacy. It would also compromise the judicial capacity to contribute to the rule of law and would institute a mode of government that is not well-placed to secure the common good.

Rather than toying with a written constitution, Sumption encourages his audience to consider electoral reform, which would open the space for minor parties and force the main parties to broaden their appeal beyond a narrow base. The site for compromise would thus be between parties rather than within them, which might mean weaker, less stable government. But, Sumption reasons, this would “be a price worth paying if it boosted public engagement with politics” and enabled compromise to be forged. Electoral reform is certainly worth considering – New Zealand’s abandonment of first past the post in the 1990s seems broadly successful, even if not without its cost in terms of transparency and responsibility. And one might consider more particular reform of political parties, limiting the risk, on display in recent years, that the membership outside Parliament will foist a leader on the parliamentary caucus who then lacks the confidence of his or her colleagues.

The lecture concludes by prophesying that democracy will not end with a bang, but will simply fade away, with our “institutions imperceptibly drained of everything that once made them democratic.” It is a chilling warning and a fitting end to the series but it does invite some wider thoughts about these Reith lectures. Sumption often assumes that law has risen to fill a void left by the decline of politics. But the relationship between the two is dynamic, as these lectures in part confirm. The rise of law, itself fuelled by the hostility of many lawyers towards parliamentary democracy, serves to oust politics and partly causes its decline. The adoption of supra-national legal restraints, enforceable by domestic and European judges, is the extreme case and clearly weakens national democracy (see further Peter Mair and Helen Thompson). The analogous trend in domestic courts is also important, even if political authorities strictly have a greater capacity to resist judicial usurpation at home.

The Reith lectures argue that turning to the law will not solve our problems of political legitimacy. This is a point rightly made but it risks understating, as I say, the contribution that “law’s expanding empire” has made to those problems. It may also at times take for granted a shared commitment to democratic legitimacy, whereas in fact it is the thinness of elite commitment to political legitimacy that is a main reason to fear for democracy’s future. The calls for a written constitution, or for supra-national law and adjudication, or for domestic litigation to discipline our political authorities – these may not be misguided attempts to shore up democracy’s foundations, but rather attempts to tie an unruly people down. Sumption is, as I have said, no radical democrat; his call for greater public engagement in politics is limited by his choice to frame representative politics as a restraint on popular majorities. But he rightly sees, I suggest, that a political strategy of demobilising the people, of relying on law to restrain politics, is not only unjust but also unstable and hence imprudent.

Richard Ekins is Associate Professor, University of Oxford, Head of Policy Exchange’s Judicial Power Project, and editor (with N. W. Barber and P. Yowell) of Lord Sumption and the Limits of the Law (Hart Publishing, Oxford, 2016).

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